9.
even
possibility of two or
three more stages to the appellate process High Court, Court of Appeal and Privy Council - and unduly prolong uncertainty. Moreover, since the issue of what is or is not a point of law is often uncertain and itself a much-litigated question, a high proportion of cases might go to the High Court for determination. It is considered much to be preferred, both in the interests of the investing public and the authority of the Appeals Board, to limit the review of its decisions to cases of unfairness or want of natural justice, by means of the judicial review procedure.
A number of bodies consulted also took the view that there should be some emergency procedure by which appeals could be heard quickly, particularly in the case of the use of the powers of intervention. This is considered to be a practical matter for
the administrative procedures of the Appeals Board.
In
regard to the presence on the appeal tribunal of a non-executive director, it is intended that the administrative procedures of the Commission will, wherever practicable, ensure that that non-executive director has not previously been concerned in a decision of the Commission in the case under appeal. In most cases, appeals to the Appeal Board will lie direct from a ruling of an executive officer or executive committee of the Commission and so not involve the non-executive directors. In the cases (which are expected to be very rare) in which the full Commission will sit to determine a question, the administrative procedures will take account of the need to ensure that at least one non-executive director does not sit at that full hearing, so as to be available to deal with an appeal if one is taken.
Inspection
and
been made to
in
investigation: a number of important changes have the original proposals on this topic, as described the "Note of Main Points" attached. As a result, the existing proposals have met with general approval and satisfaction. The Bar Association has said that it wishes to reserve its position, and will make its comments at a later stage.
The Unit Trust Association, the Financial Executives Institute, and the Deposit-taking Companies all expressed some concern about the confidentiality of client records, and the confidentiality between bankers and their customers. The Bill proposes that banking records will be made available to officers of the Commission or investigators appointed under powers in the Bill only if such records are necessary for the purposes of inspection or investigation, and the Commission certifies that expressly. The Bill also contains provision in clause 29 for information to be obtained relating to transactions carried out by brokers and others. This exactly reflects the existing section 123 of the Securities Ordinance and broadens it to include transactions on the Futures Exchange.