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In The High Court of The Hong Kong Special Administrative Region Court of Appeal
In The High Court of The Hong Kong Special Administrative Region Court of Appeal
In The High Court of The Hong Kong Special Administrative Region Court of Appeal
and
and
and
BETWEEN
SUN HONEST DEVELOPMENT LIMITED Applicant
and
APPEAL TRIBUNAL (BUILDINGS) Respondent
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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.
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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.
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:
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:
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.
“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).
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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.
16. I agree.
Hon Sakhrani J:
17. I agree.