CACV 254/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 254 OF 2004
(ON APPEAL FROM HCAL NO. 45 OF 2003)
_________________________
IN THE MATTER of an Application for
Judicial Review by Sun Honest
Development Limited pursuant to Order
53 of the Rules of the High Court

and

IN THE MATTER of section 13 of the

Town Planning Ordinance (Cap. 131)

and

IN THE MATTER of the Buildings

Ordinance (Cap. 123)

and

IN THE MATTER of the Determination

of the Appeal Tribunal (Buildings) Case
Numbers (152-2001 and 177-2001) made
on 26th February 2003
_________________________

BETWEEN
SUN HONEST DEVELOPMENT LIMITED Applicant
and
APPEAL TRIBUNAL (BUILDINGS) Respondent
_________________________
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Before: Hon Rogers VP, Le Pichon JA and Sakhrani J in Court

Date of Hearing: 11 May 2005
Date of Judgment: 11 May 2005
Date of Handing Down Reasons for Judgment: 19 May 2005
_________________________

REASONS FOR JUDGMENT

_________________________

Hon Rogers VP:

1. This is an appeal from the judgment of Chung J given on 26 July

2004. The matter before the judge was an application for judicial review
against the determination of the Appeal Tribunal (Buildings) given in the
Appeal Tribunal (Buildings) Case No. 152-2001 on 26 February 2003. At the
conclusion of the hearing of this appeal, this appeal was allowed and the court
ordered certioari to quash the Determination of the Appeal Tribunal (Buildings)
and remitted the matter to a differently constituted Appeal Tribunal to be heard
and determined de novo. The applicant was awarded the costs here and below.
The costs of the original hearing before the Appeal Tribunal were left to be
determined by the Appeal Tribunal when considering the matter de novo.

2. Because this court considered that there was an important matter to

be decided in relation to the applicant’s case that there had been apparent bias
on the part of the Appeal Tribunal, that issue was argued first. In view of the
decision to which this court came, it was considered undesirable for this court to
consider any of the other matters which were in issue before the Appeal
Tribunal and hence this judgment only deals with the question of apparent bias.

3. The matter before the Appeal Tribunal was an appeal from the
Building Authority’s refusal to approve the applicant’s building plan in respect
of No. 4 and 4A-4D Wang Fung Terrace on the basis of sections 16(1)(d), (g),
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(h) and (i) of the Buildings Ordinance, Cap. 123. There is a panel of persons
who are appointed to be members of the Appeal Tribunal and in any appeal
members are selected from that panel to constitute the Appeal Tribunal.

4. On 11 January 2002 the Building Authority submitted an

application for an extension of time to file its representations in the applicant’s
appeal. The papers were apparently sent to a barrister who was qualified to act
as chairman of the Appeal Tribunal and was on the panel. Hereafter he will be
referred to as “the barrister”. Although there was no direct communication
between the Building Authority and the barrister in connection with this matter
at that stage, the Secretary to the Appeal Tribunal replied to the Building
Authority on 14 January 2002 in the following terms:

“The Tribunal Chairman has made the following remarks on your

application of an extension of time to file the response to the
Appellant’s statement of particulars:-

‘Whilst I accept that intervening public holidays of themselves would

not necessarily constitute a good reason to extend time, nevertheless I
do have regard to the fact that such is the nature of a significant part of
the statement of particulars that it could not be thought unreasonable
the Building Authority would wish to have an adequate opportunity of
conferring with other Government Departments and/or public bodies,
before settling their response. I also have born in mind that this is the
first occasion upon which the Building Authority have sought an
extension of time and the period requested could not be regarded as of
a great length.

Accordingly, despite having given careful consideration to all the

matters raised by the Appellant’s Solicitors in their letter of the
11th January 2002, I am prepared to direct that the Building Authority
should have an extension of time until the 25th January next but they
should bear in mind that any further application for an extension may
well not so readily be received.’”

5. Although the barrister was only formally appointed Chairman of

the Appeal Tribunal in respect of Case No. 152-2001, which was the appeal in
question, on 10 May 2002, he gave detailed directions in respect of the conduct
of the appeal by letter dated 2 February 2002. As already indicated, the

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Appeal Tribunal, consisting of three other members in addition to the barrister

acting as chairman, gave its decision on 26 February 2003.

6. It was not until a few months later, on 14 June 2003, that the
applicant became aware that the barrister had all along been acting on behalf of
the Building Authority in another case. It is unnecessary to detail all the facts.
It is sufficient to say that the transcript of the proceedings of Case No. 158 of
2001 has been exhibited in this case. The matter arose because in the course of
those proceedings, which were an appeal by, effectively, the applicant
represented by the same lawyers who represented the applicant in the Appeal
Tribunal in these proceedings, the barrister drew the parties’ attention to the fact
that he had come into contact with an officer of the Building Authority who was
a key person in respect of Case No. 158 of 2001. That contact had been
minimal and had been occasioned because the barrister was acting on the
instructions of the Building Authority in a judicial review, HCAL 147 of 2002.
It appears from the transcript that the barrister was at pains to say that the
contact had been unintended and that there had been no communication as a
result of that contact. The barrister did not disclose the matter on the basis that
he had been advising the Building Authority in respect of that other case from at
least December 2001.

7. Indeed, it emerged that shortly after the letter of 14 January 2002

the barrister had appeared before the Appeal Tribunal in that other case between
24 January and 28 January 2002. On 18 March 2002 the barrister had
submitted written submissions in that other case. In July of that year the
barrister had settled the draft application for judicial review and had advised in
that other case.

8. There is no dispute between the parties in this case as to the test

which must be applied in considering whether a person in the position of a
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judge should not act as a judge on the basis that there might be bias. The test
has been refined over many years and in respect of the basic principles it is
sufficient to cite the case of Porter v Magill [2002] 2 AC 357 where Lord Hope
of Craighead said at 494 paragraph 103:

“The question is whether the fair-minded and informed observer,

having considered the facts, would conclude that there was a real
possibility that the tribunal was biased.”

9. That test has been adopted by the Court of Final Appeal, see the
judgment of Ribeiro PJ in Deacons v White and Case [2003] 3 HKC 374 at
page 381 para 21:

“… the view of the fair-minded and informed observer as to whether a

reasonable apprehension of bias arises may differ from the reviewing
court’s own view, and that it is through the prism of such an observer’s
perception that the court should consider whether the case is one of
apparent bias.”

10. To this one might also add the observations of Lord Denning MR
in the case of Metropolitan Properties Co. (F.G.C.) Ltd. v Lannon [1968] 3
WLR 694 at 707 where he said that the court did not look at the mind of the
person who was acting as the judge or chairman of the Tribunal but it looks to
see what impression would be given to other people. At page 708 he made the
general observation that a barrister or solicitor should not sit on a case to which
one of his clients was a party. As subsequent cases have shown, there may be
exceptions for example where the judge was a partner in a large firm of
solicitors and knew nothing about work which other sections of the firm had
undertaken.

11. The judge below dismissed the objection of apparent bias. He

referred first of all to section 48(4) of the Buildings Ordinance:

“(4) For the avoidance of doubt it is declared that where a public

officer is a Chairman or a member of the Appeal Tribunal he shall, as
regards the performance of his functions as such Chairman or member-
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(a) act in his personal capacity only; and

(b) not be subject to any direction to which he might be

subject in his capacity as a public officer.”

12. Then he said at paragraph 67 of the judgment:

“67. I agree with the respondent that when deciding matters of this
kind, the whole circumstance (including the entire statutory scheme)
(that is, the circumstance reasonably known to an informed observer)
has to be looked at: see also remarks to similar effect in The Building
Authority v. Business Rights Ltd., p. 6, per Litton JA (as he then was).

68. I also accept the respondent’s argument that the statutory

scheme of Cap. 123 relating to the tribunal shows that the statute must
have intended that matters falling within the jurisdiction of the tribunal
are to be determined by an ad hoc tribunal consisting of professionals
and specialists appointed for such purpose: see similar comments in the
Wing On Co. Ltd. case, p. 2, per Sears J. Bearing in mind particularly
the provisions of s. 48(4), I do not consider the mere fact of a chairman
of the tribunal acting at the same time as counsel for the Building
Authority in other unrelated matters is sufficient to found a case of
bias.”

13. In my view these considerations are irrelevant. A public officer is

still bound to act fairly and cannot act in a situation where it may be considered
that there would be apparent bias. The fact that a public officer may receive
income which is effectively from the same source as the barrister acting for the
Building Authority would receive his payment when acting on their behalf is
irrelevant. The circumstances are quite different.

14. In my view any informed observer would immediately come to the

conclusion that there was a possibility of bias. The very terms of the letter of
14 January 2002 quoted above show that an indulgence had been given to the
Building Authority. In the whole context that may be a minor matter of no
consequence. It may not have made any difference to the outcome of the case.
Nevertheless it was an indulgence given to the Building Authority for whom the
barrister was working as a barrister at the time in an important case. In my
view the test laid down in the cases is fully applicable in this case. I have no

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hesitation in saying that when asked to give directions and make orders, as the
barrister was in January and February 2002, he should have at once declined to
do so without any hesitation whatever. He put himself in an untenable position.
His position was no better when the appeal came to be heard later. He was
still heavily involved with one of the parties to the appeal.

15. Mr Mok who appeared on behalf of the Building Authority has put
before the court everything which could possibly be said to show that the
position was regular. Unfortunately none of the arguments put forward can
outweigh the fact that a reasonable observer would come to the conclusion that
there was a possibility of bias. In this respect it cannot matter that the barrister
himself did not appreciate that, as was stressed by Mr Mok. The matter is one
of perception by an independent and well-informed observer.

Hon Le Pichon JA:

16. I agree.

Hon Sakhrani J:

17. I agree.

(Anthony Rogers) (Doreen Le Pichon) (Arjan H Sakhrani)

Vice-President Justice of Appeal Judge of the
Court of First Instance

Mr Warren Chan SC and Mr Liu Man Kin, instructed by Messrs Tsang,

Chau & Shuen, for the Applicant/Appellant

Mr Mok Yeuk Chi and Mr Alexander Stock, instructed by Department of

Justice, for the Building Authority/Respondent

Appeal Tribunal (Buildings) not represented

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