Judge's errors cast doubt on tribunal power
A landmark ruling that a High Court judge had bungled an Insider Dealing Tribunal has opened questions for the business community on how much power the tribunal wields.
Mr Justice Raymond Sears last week left the judiciary reeling when he tossed out the findings of an investigation into the activities of Paragon Holdings and CNPC (Hong Kong) between March 3 and May 7, 1993.
He ruled that the Insider Dealing Tribunal chairman, Mr Justice David Yam Yee-kam, had held 39 hours of clandestine meetings; had ordered the destruction of a draft report; had taken evidence behind closed doors, and had used tribunal counsel barrister Peter Davies to 'ghost write' the final report.
None of this would have come to light if Mr Justice Yam had not ordered what Mr Justice Sears called 'the spiteful prosecution' of Malaysian businessman Tan Long Min for failing to attend the tribunal, which began on March 1996 and ended on June 6, 1997.
During testimony by Mr Davies at a criminal hearing into Mr Tan's avoidance of the tribunal, it was revealed that Mr Davies had held secret meetings with Mr Justice Yam and even helped with drafting the final report.
All of this was done without the knowledge of the lawyers representing Mr Tan and other people named by the inquiry.
Mr Justice Sears said in his ruling on April 1 that the tribunal had 'fought long and hard to prevent the minutes [of the secret meetings] being disclosed'.
He criticised Mr Justice Yam for taking 18 months to run the tribunal.
The bulk of evidence, except for two hours', was completed by August 16, 1996.
The chairman did not start writing the report until late December, and it did not reach the Financial Secretary until June 9, 1997, more than nine months later.
Some observers believe that, instead of putting under scrutiny the judge in the case, it might be time to take a look at the powers of the tribunal.
If the Securities and Futures Commission (SFC) is a regulatory watchdog, then the tribunal can be considered something of a lone wolf.
Each tribunal is chaired by a High Court judge and two appointed lay members.
Each judge leaves his own mark on the tribunal.
Mr Justice Frank Stock was known for his meticulous deliberation. In contrast to what Mr Justice Sears called the unorthodox and 'extraordinarily bizarre' handling of the Paragon tribunal, the present chairman, Mr Justice Michael Burrell, has been praised by lawyers for his 'unfailing fairness'.
But what happens to a businessman accused by the tribunal? Is his fate left to the whims of single judge, or should the scope of the ordinance be tightened? The most important aspect of the inquiry is that, in Hong Kong, insider dealing, unlike other commercial offences, is not a crime and is not dealt with in the criminal court.
That does not mean a crooked businessman will walk away with a slap on the wrist. The inquiry is 'quasi-criminal', and it is a tribunal with teeth.
An implicated person faces fines of three times the amount profited, or of the loss avoided, by insider dealing.
Such a person is banned for six years from appearing on the board of a Hong Kong company.
In the Paragon case, one implicated person faced a possible fine of $510 million. That is a slap that leaves ears and bank accounts ringing.
'An implicated person has less protection than in a civil, let alone criminal, trial,' a prominent commercial lawyer said.
'At least you know what the scope of the argument is when you appear in court. Here there is less protection for those named.' In civil hearings, the borders of the case are defined by the pleadings. In a criminal case, it is the indictment which sets out the crime, and the prosecution cannot step beyond the charges laid.
In an insider dealing tribunal, the implicated person does not know exactly what questions are going to be asked. The line of inquiry can change mid-stream, and the tribunal ordinance allows that if new evidence is dug up, it can be thrown at the person.
'A person can be hauled up before the tribunal and the implications of that are frightening,' the commercial law specialist said.
'No, you won't go to prison, but it will destroy your reputation, your career and possibly any future livelihood.
'Where the penalties are so severe, an implicated person should be entitled to all the procedural protection available, just like in a criminal case.
'You don't go to jail and you have no criminal record, but not much else is left for you. You are branded for the rest of your corporate life.' The SFC will argue that, because of the nature of insider trading, the secret meetings, clandestine transfers of shares and money trails can only be uncovered by avenues that are broader and more open than those allowed in a criminal or civil court.
But that argument was scoffed at by a solicitor who pointed out that the courts had no problem convicting people accused of white-collar crimes like fraud, technical crimes and money laundering.
The recent ruling by Mr Justice Sears has done more than expose the flaws of one judge.
It has shown that the tribunal's teeth are razor sharp and, unless that watchdog is given a tighter leash, the injustice seen in the Paragon tribunal could happen again.