Appeal fails despite violation
An insider dealing tribunal member who breached confidentiality gave a Tysan Holdings executive 'justifiable grounds' to challenge the findings, a judge ruled yesterday.
The conduct - chatting about the case in a bar and alumni club, and faxing a fellow member's notes to the executive - went beyond indiscretion and violated a duty to keep tribunal views strictly private, the judge said.
However, there was no evidence that member John Wu Chi-tso's acts had any bearing on the tribunal decision, which found that Tysan vice-chairman Francis Cheung and Cammie Pang Kam-chi traded illegally on price-sensitive information in 1993.
The pair had challenged the findings of April last year after Mr Wu apologised to Mr Cheung at an alumni social gathering, saying he merely went along with the two other members who believed him guilty. He even sent a copy of one of his fellow member's notes to prove his point.
He assured Mr Cheung the penalty would be 'peanuts'.
The Court of First Instance also heard how Mr Wu on two occasions discussed the case with a friend in a bar after a football match.
Mr Wu denied the allegations but presented no evidence to contradict them. Despite his inappropriate behaviour, Mr Justice Brian Keith ruled, the tribunal's report was not undermined.
The law does not require the tribunal to state that one member dissented from the findings of the majority.
'The fact is that the other two members of the tribunal constituted a majority, and they were in favour of finding the applicants guilty of insider dealing,' the judge ruled.
Although the application for judicial review was dismissed, the judge said the 'unique circumstances' of the case justified an 'exceptional order for costs'.
The two appellants would normally have faced the prospect of footing the bill for both sides.
The Financial Secretary was 'entirely blameless' for Mr Wu's misconduct, the judge said.
'On the other hand, although the applicant's challenge to the findings of the tribunal has failed,' he continued, 'the challenge has revealed conduct on the part of a tribunal member for which the applicants had justifiable grounds for concern.' Mr Justice Keith said it would not be fair for Mr Cheung and Ms Pang to be 'saddled' with their costs and those of the Financial Secretary, and ruled that there be no order for costs.