MESSRS HLB HODGSON IMPEY CHENG (a firm) AND OTHERS v. THE HONG KONG INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS

HCAL 5/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 5 OF 2010

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BETWEEN

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J U D G M E N T

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I. INTRODUCTION

1.  HLB is a firm of certified public accountants. Mr Cheng and Mr Lai are partners of HLB.  In this Judgment, I shall refer to the Applicants collectively as HLB.

2.  Tiffit Securities (Hong Kong) Ltd. dealt in securities on behalf of clients.  In 2006 the SFC discovered that Tiffit’s directors (who were husband and wife) had been misappropriating substantial numbers of securities which Tiffit was holding for its clients. The SFC served a restriction notice on Tiffit to preserve the remaining assets of Tiffit clients. Tiffit was eventually wound up in May 2007.

3.  HLB were Tiffit’s auditors between 2003 and 2005. In September 2006 the SFC referred concerns over the standard of HLB’s work as Tiffit’s auditors to the Institute. In October 2006 the Institute convened an Investigation Committee (IC) to look into the SFC’s reference. 

4.  HLB now seeks judicial review of the Institute’s decision (evidenced by a letter dated 12 December 2009) rejecting HLB’s complaints about the conduct of the IC, including objections to the membership of the IC.  HLB also seeks judicial review of the Institutes’ decision (evidenced by a letter dated 8 January 2010) refusing to reconstitute a different IC.

II.    BACKGROUND

5.  The Institute is a statutory body established under the Professional Accountants Ordinance (Cap.50) (PAO).  The Institute is responsible for the registration and supervision of certified public accountants in Hong Kong.  The Institute is managed by a Council of 22 members.  The Council appoints a Registrar to assist in the Council’s work.  At present the Registrar also serves as the Institute’s Chief Executive Officer.  The Institute has a Compliance Department (directed by Mr Philip Hilliard) which is responsible for inquiring into complaints about the conduct of certified public accountants and their firms.

6.  Under PAO s.42C where the Council believes that a certified public accountant or firm has breached professional standards, the Council may constitute an IC. The IC will then consider the matter of the alleged breach and “inform the Council as to whether ... the certified public accountant or firm ... would have a case to answer” in relation to the suspected breaches.  An IC consists of 5 members, 3 of whom (including the chairman) are lay persons and 2 of whom are accountants.

7.  Where an IC finds that an accountant or firm has a case to answer, it will so inform the Council.  The latter may then at its discretion refer the matter to its Disciplinary Panels.  The Disciplinary Panels will convene a Disciplinary Committee.  The Disciplinary Committee will then examine evidence, conduct hearings, and determine whether a disciplinary offence has taken place.  Where it finds an accountant or firm liable, it may impose sanctions on the accountant or firm.  The accountant or firm may appeal against the Disciplinary Committee’s decision to the Court of Appeal.

8.  Under a protocol between the SFC and the Institute, where the SFC refers a matter to the Institute, the Compliance Department will conduct a preliminary review and prepare a report.  A draft of the preliminary report is provided to the SFC.  If (having seen the report) the SFC wishes to pursue the matter, the SFC’s reference goes to the Council for consideration.  At that stage, the Council may appoint an IC to look further into the question.  The Council may in the alternative refer the matter directly to the Disciplinary Panels.

9.  In this case, the SFC’s investigation revealed apparent failings in steps taken by HLB to verify the stock holdings and account balances of Tiffit clients.  In particular, the SFC was concerned about flaws in the “circularisation” process by which HLB contacted Tiffit clients for the purpose of confirming their recorded stock holdings and account balances.

10.  Upon receipt of the SFC’s referral, the Compliance Department conducted a preliminary review.  Its report went to the SFC and was considered by the Council in October 2006.  The Council resolved to constitute an IC to look into HLB’s audit of Tiffit.

11.  The IC was appointed on 2 April 2007.  Its chairperson is Mr Dieter Yih (of the law firm Mallesons Stephen Jaques).  Its lay members are Dr Bill Kwok (of Wing On (Holdings) Ltd.) and Dr Au King Lun (formerly of HSBC Investment (HK) Ltd.).  Its professional members are Mr Joseph Lo (of Deloitte Touche Tohmatsu) and Mr Kenneth Morrison (formerly of Moores Rowland Mazars).  Upon appointment, each IC member signed an undertaking to exercise their best endeavours to avoid any conflict of interest with their work on the IC.

12.  Anticipating that the IC might require help in reviewing HLB’s work, in September 2007 the Council appointed Ms Karen Lee of Elite Industrial Consulting Ltd. to act as a consultant of the IC.

13.  The IC requested and eventually obtained copies of HLB’s working papers prepared in connection with the audit of Tiffit. 

14.  At a meeting in November 2007 the IC agreed that Ms Lee would review those audit papers and report to the IC with preliminary observations.  The IC met in February 2008 to consider the results of Ms Lee’s review, including her proposed findings.  The IC thought that further issues needed to be investigated.  These issues were raised with HLB in March 2008.  HLB responded substantively to the IC’s inquiries in June 2008.

15.  At a meeting in July 2008 the IC re-considered Ms Lee’s proposed findings in light of HLB’s response.  It concluded that there was a case for HLB to answer.  It directed that a draft report be prepared based on Ms Lee’s proposed findings.  But as Ms Lee could not continue her involvement for personal reasons, the IC directed that the Compliance Department prepare the draft report in Ms Lee’s stead.

16.  In November 2008 the IC examined the Compliance Department’s draft report.  It also looked at a draft complaint against HLB prepared by the Compliance Department.  After discussion, the IC directed that a number of amendments be made to the report and complaint.  The revised documents were then sent to HLB for comment.

17.  HLB requested extensions of the time in which to comment.  Extensions were granted.  Nonetheless, HLB having failed to submit anything by the end of July 2009, the IC finalised the report and complaint in August 2009.  Copies of the report and complaint as finalised were provided to HLB.

18.  In its August 2009 report the IC took the view that HLB’s working papers did not adequately support HLB’s opinion regarding the adequacy of Tiffit’s systems and statutory compliance.  The IC identified the following in its report as the professional standards which HLB was likely to have breached: SAS 110 (auditor’s responsibility to consider fraud and error), SAS 230 (documentation), SAS 300 (audit risk amendments and accounting and internal control systems), SAS 400 (audit evidence), SAS 402 (external confirmations) and SAS 430 (audit sampling).  The IC report also considered that PN 820 (audit of licensed corporations and associated entities of intermediaries) was relevant.

19.  In September 2009 HLB sent written submissions to the Institute in response to the August 2009 report.  Among other complaints, HLB alleged that the IC had applied the wrong professional standards.  It also accused Mr Yih, Dr Au and Dr Kwok of apparent bias.  Mr Yih (it was said) was a close friend of Mr Cheng’s family, while Dr Au and Dr Kwok were said to be associated with the SFC and with Hong Kong Exchanges and Clearing Ltd.

20.  Upon receipt of HLB’s submissions, the Registrar considered that the same should be routed through the Compliance Department and IC before submission to the Council.  This was in accordance with the Institute’s standard procedure.  The Council only meets monthly.  To ensure that meetings are conducted efficiently, the Registrar ensures that the Council has adequate information from relevant departments or committees beforehand to assist the Council in making an informed decision at a meeting. 

21.  Having reviewed the August 2009 report, the Compliance Department decided that the August 2009 report had applied the wrong professional standards.  The report should have applied the relevant Standard on Assurance Engagements in effect in 2003, 2004 and 2005 respectively. 

22.  But the Compliance Department did not believe that this necessarily meant that the conclusions in the August 2009 report were wrong.  The Accounting Standards and Practice Note relied upon in the August 2009 report provided guidance on the minimum level of good practice expected in relation to the applicable Assurance Engagement Standards.  Accordingly, departures from the Accounting Standards and Practice Note cited in the August 2009 report might still be regarded as evidence that the applicable Assurance Engagement Standards had themselves been breached.

23.  The Compliance Department reasoned that, despite the error, the IC might well decide that its earlier conclusion remained valid in substance.  The Compliance Department consequently prepared a draft revised report containing amended references to the correct professional standards for the IC’s consideration.

24.  In October 2009 the IC considered HLB’s submissions.  The IC accepted that it had applied the wrong standards.  But it did not think that such error vitiated the conclusions reached in the August 2009 report.  The IC still took the view that HLB had a case to answer.  It accepted the Compliance Department’s revised report. 

25.  The IC directed that a further amended report and complaint be prepared by the Compliance Department.  This was done on 19 October 2009.  On the following day, copies of the latter report and complaint were sent to HLB.

26.  HLB’s lawyers alleged that the process which had led to the revision of the August 2009 report was improper for various reasons.  HLB’s allegations of bias against Dr Kwok and Dr Au were maintained in relation to the amended report.  Nevertheless, the IC did not receive any comments from HLB on the substantive contents of the amended report.

27.  In November 2009 the members of the IC signed a final version of the amended report.  The final version had a pre-printed date of 12 November 2009 on the assumption that the same would be signed on that date.  But, due to the absence of some IC members from Hong Kong, the final version was not actually signed by the latter members until 16 November 2009.          

28.  On 12 December 2009 the Institute’s solicitors rejected HLB’s procedural and bias complaints in relation to the November 2009 report.

29.  On 8 January 2010 the Institutes’ solicitors refused to give an undertaking (as requested by HLB) that the Council would not refer the matter to the Disciplinary Panels.  As a result of this judicial review, the Council has been temporarily enjoined from deciding whether or not to refer the matter of HLB’s audit to the Disciplinary Panels.

III.   DISCUSSION

A.    HLB’s argument

30.  On behalf of HLB, Mr Johnny Mok SC submits that, although its role is limited to investigation and evaluating whether there is a case to answer, an IC should still maintain “a requisite degree of independence and impartiality”.  Here (Mr Mok argues) the members of the IC over-stepped that requisite degree of independence and impartiality by considering the reports prepared by Ms Lee and the Compliance Department before applying their own reasoning and reaching their own conclusion that there was a case for HLB to answer.

31.  Mr Mok originally also contended that the IC’s failure to meet the requisite degree of independence and impartiality was reinforced by a perception of apparent bias.  That apparent bias arose (according to Mr  Mok) from the “close connections and associations” between Dr Kwok and Dr Au on the hand and the SFC on the other.  But, at the oral hearing before me, Mr Mok abandoned the allegation of apparent bias.

B.    Whether IC showed requisite degree of independence and impartiality

32.  Mr Mok submits that, when determining whether HLB had a case to answer, the IC was exercising a quasi-judicial function.  It was therefore important that, in fulfilling its statutory function of examining and evaluating evidence, the IC should not be seen as having been “unduly influenced” by non-members such as Ms Lee or the Compliance Department.  It was (Mr Mok stresses) for the members of the IC and them alone to decide whether there was a case to answer, unprompted by the views or observations of non-members on that very question.  

33.  In support of his contention, Mr Mok cites a dictum of Lord Denning MR in Ward v. Bradford Corporation (1971) 70 LGR 27.  The dictum is to the effect that “in general no person ought to participate in the deliberations of a judicial or quasi-judical body unless he is a member of it”.  Lord Denning additionally stated that a non-member should not retire with the members of a tribunal “lest it give the impression that he is taking part in their deliberations when he is not entitled to do so”.

34.  Mr Mok also drew my attention to the following passage in R v. Race Relations Board, ex p. Selvarajan[1975] 1 WLR 1686 (CA), at 1694 (Lord Denning MR):-

“In all these cases it has been held that the investigating body is under a duty to act fairly: but that which fairness requires depends upon the nature of the investigation and the consequences which it may have on persons affected by it. The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely afflicted by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it. The investigating body is, however, the master of its own procedure. It need not hold a hearing. It can do everything in writing. It need not allow lawyers. It need not put every detail of the case against a man. Suffice it if the broad grounds are given. It need not name its informants. It can give the substance only. Moreover, it need not do everything itself. It can employ secretaries and assistants to do all the preliminary work and leave much to them. But, in the end, the investigating body itself must come to its own decision and make its own report.”

35.  More recently (Mr Mok notes) the Court of Final Appeal in Medical Council of Hong Kong v. Helen Chan FACV 13 of 2009, 14 May 2010, has held that, while there is nothing wrong about a professional disciplinary tribunal relying on a legal adviser to prepare a draft of the tribunal’s decision,“[n]o drafting by the legal adviser may commence until after the tribunal ... has arrived at its decision and has made its decision, findings and reasoning known to the legal adviser”(Bokhary PJ at para.62).

36.  Mr Mok criticises the procedure followed by the IC in this case.

37.  The IC (Mr Mok says) did not evaluate the available evidence by itself, employ its own reasoning, or arrive at its own unaided decision as to whether there was a case for HLB to answer.  Instead, the IC asked Ms Lee to review HLB’s working papers and present her proposed findings.  Only after receiving those findings did the IC deliberate and adopt Ms Lee’s conclusions in its August 2009 report.   

38.  In relation to the November 2009 report, Mr Mok complains that the IC relied on a revised report and conclusions prepared by the Compliance Department.  Mr Mok contends that, in reality, the Compliance Department would have already determined on the existence of a case to answer based on Ms Lee’s report.  The revised report which the Compliance Department put to the IC would have reflected that view.  The IC’s deliberations might (Mr Mok says) therefore justifiably be perceived by a fair-minded observer as having been improperly influenced by a slanted view in the Compliance Department’s revised report.

39.  Mr Mok goes further.  He submits that the IC did not exercise an independent mind in coming to its decision.  He suggests that, on the evidence, the IC merely “rubber-stamped” what Ms Lee and the Compliance Department had done.

40.  One piece of evidence is the approval of the August 2009 report by the IC.  If (Mr Mok says) the IC had independently addressed its mind to the evidence, it is hard to imagine that the IC with its 2 highly-qualified accountant members could have committed such an egregious error as to apply the wrong standards.  That obvious mistake appears, nonetheless, in both Ms Lee’s preliminary report and the August 2009 report.

41.  The second piece of evidence is a detailed textual analysis by Mr Mok of Ms Lee’s preliminary report and the August and November 2009 reports.  Mr Mok’s comparison shows that there are only relatively minor differences between the wording of Ms Lee’s preliminary findings and the text of the detailed finding annexed to the August and November 2009 reports.  Mr Mok infers from this that the IC simply adopted Ms Lee’s findings without exercising an independent consideration. 

42.  I am not persuaded by Mr Mok’s arguments.  I would make a number of observations.

43.  First, plainly the IC must show some degree of independence and impartiality.  I do not think anyone can seriously argue to the contrary.  That an IC has to be impartial and act in good faith in weighing evidence, for example, is tacitly acknowledged by the undertaking to avoid conflicts of interest signed by the IC’s members upon their appointment. 

44.  The real question is what the “requisite degree” of independence and impartiality is which the IC must show. 

45.  There is a whole spectrum of independence and impartiality.  The more formal the nature of the decision-maker and the more significant the consequences of its decision, the more rigorous the degree of independence and impartiality that such entity must show.

46.  Where on this spectrum does the IC find itself? That depends on the function which the IC is supposed to carry out or (to use Lord Hoffmann’s words in Clark v. Kelly [2004] 1 AC 681 (at para.19)) it all depends on how the IC “works in practice and how its workings would appear to a reasonable objective observer”.

47.  Second, it is apparent from, for example, the title to PAO Part VA (which describes the constitution and powers of an IC) that an IC functions to “conduct investigations into misconduct of certified public accountants” and to form a view whether there is “a prima facie case” against them.

48.  With that in mind, consider the practicalities of what an IC has to do in light of its composition. 

49.  ICs only meet from time to time.  Its members are not full-time appointees.  They are instead volunteers taking time out of their busy schedules to provide a public service. 

50.  A majority of the members are lay persons who may need help in understanding accounting practices and standards.  It would be impractical to expect the members of an IC to go through the possibly voluminous working papers of an audit without assistance.  In reality, an IC could not effectively function unless it had the ability to enlist consultants to conduct a preliminary investigation of the raw material thrown up by an audit.

51.  Without third parties to help focus the materials to be considered by its members, an IC could not make prompt decisions in disciplinary matters.  That state of affairs would not be conducive to the public good, as professionals should be held accountable for misconduct at the earliest possible stage.  Nor would it be conducive to the reputations of persons or firms under investigation if the review by an IC should take a protracted period, with the result that a cloud of uncertainty hangs over the persons or firms being investigated for some length of time.

52.  The IC is not a tribunal.  It investigates and makes a report based on its investigation.  There is no formal process which an IC must strictly follow when carrying out its investigation and preparing its report.  It may interview witnesses.  But it is not obliged to give the party under investigation the opportunity to cross-examine the persons interviewed. It does not conduct hearings where adversarial submissions are advanced, although as a matter of fairness and good practice it normally invites submissions from the party being investigated at some point in its investigations.  What the IC does is preliminary and its recommendation may not even be adopted by the Council.

53.  Taking account all the foregoing, I do not think that the IC is properly characterised as carrying out some sort of “quasi-judicial” function (as Mr Mok suggests).  The rigorous standard expected of judicial or quasi-judicial bodies suggested in Medical Council would be inapposite to an IC.  Instead, the IC’s function seems to me more akin (as submitted by Mr Paul Shieh SC on behalf of the Institute) to the functions performed by the police.

54.  The police investigate the evidence.  They form a view, whether on the strength of that evidence, there is a sufficient case to prosecute a person.  In conducting their investigation, the police may consult others on possible readings of the available evidence, including the strengths and weaknesses of the same.  No one would suggest that, simply by so conducting their inquiries, the police could be acting in an apparently biased or procedurally unfair manner.  There is no requirement that the police must first form a view with their own unaided reasoning and only after that would they be able to seek the opinions of others.  Such a rigid rule would unduly hamper the police in the conduct of their investigations.  Nonetheless, in coming to a conclusion whether to prosecute an individual, the police would normally be expected to weigh the evidence impartially, without showing favour to any particular interest.  See, to similar effect on the role of the police, Lord Denning MR in Christopher John Moran v. Lloyds [1981] 1 Lloyds Rep 423, at 426-7.

55.  It seems to me that the “requisite degree” of independence and impartiality for an IC would be more closely analogous to that expected from the police.  Any other conclusion would be unrealistic. 

56.  Just as the police’s decision to prosecute could not be said to be tainted with partiality where the police consulted a third party for views, I do not think that a fair-minded person could reasonably consider there was the appearance of bias where an IC first enlists a third party to digest the voluminous material before the IC. 

57.  Nor do I see why a third party cannot be asked by an IC (as Ms Lee was) for his or her observations on a particular matter. What is important is that the members of the IC give their impartial and careful consideration to such observations before deciding whether or not to adopt them.  That impartial consideration may, if an IC is so persuaded, lead the IC to adopt some or all of a report prepared by a consultant (including some or all of the consultant’s recommendations) as its own.  I frankly see no difficulty in that.  I do not read Lord Denning’s dictum in Selvarajan cited by Mr Mok as requiring more than that the IC as investigating body address its independent mind to the recommendations of a consultant’s report before adopting (or rejecting) the same in whole or in part.      

58.  Third, there is a strong indication within PAO Part VA itself that an IC is free to engage third party consultants such as Ms Lee or the Compliance Department. 

59.  PAO s.42G imposes a duty of secrecy on “any person holding any other position who assists any such persons [including any member of an IC] in the performance of a function [including an investigative function] under this Part”. Thus, the PAO apparently contemplates the possibility of involving persons other than IC members (or persons to whom the IC has delegated some of its functions) to assist the IC in the carrying out of its functions.  No restriction is suggested as to the nature of assistance to be provided or the IC function for which assistance is to be sought. 

60.  Here Ms Lee held a position as consultant to the IC.  Mr Hilliard held a position as Director of Compliance.  If I am right in my reading of s.42G, then the power to enlist the assistance of Ms Lee or Mr Hilliard and his Department cannot be as narrowly confined as Mr Mok suggests.  Both Ms Lee and Mr Hilliard could be requested to provide the IC with their views on liability by way of assisting the IC to discharge its function of deciding whether a preliminary case has been made out. 

61.  For example, in the case of Mr Hilliard and his Department, their expertise is advising the Institute in particular and accountants in general on whether standards have or have not been met.  There seems to me to be no good reason to prevent an IC from initially seeking the views of the Compliance Department and tapping into its expertise when investigating and deciding whether there is a prima facie case against someone.    

62.  Fourth, I am unable to infer anything from the fact that the IC’s August 2009 report applied the wrong standard.  Even Homer can nod on occasion, sometimes more frequently than one might care to think. The mistake may have been an elementary one.  But I do not believe that it follows from this that on the balance of probability the IC rubber-stamped what Ms Lee had proposed. 

63.  Mr Mok submits that, the more the same errors and text appear in Report A and a later Report B, the more likely it is that the writers of Report B merely took the contents of Report A at face value and did not bring their independent assessment to bear on the contents of Report A.  That is one possibility. 

64.  But it is also possible that, having independently considered Report A, the authors of Report B were persuaded by the contents of Report A.  The authors of Report B may have considered the contents of Report A carefully.  Their consideration may perhaps later be proved to have been misconceived for some reason.  But I do not believe that a fair-minded observer could reasonably infer from the similarity of text in Reports A and B that the authors of Report B blindly copied Report A.      

65.  The Institute has in any event adduced evidence from Mr Morrison to the effect that at their meetings members of the IC actively addressed their minds and discussed the contents of the various reports prepared for them by Ms Lee and the Compliance Department.  On that evidence, there was no wholesale and uncritical acceptance of the reports by members. 

66.  The Institute has moreover provided a detailed chronology of the IC meetings which discussed the various reports.  It has particularised just what was decided in each such meeting.

67.  In my view, the totality of the Institute’s evidence cannot readily be ignored or dismissed as self-serving.  Weight may and should be accorded to that material.

68.  Fifth, although it is strictly unnecessary to my decision, I think that Mr Shieh correctly contends that the present judicial review is premature. 

69.  The IC’s recommendation has yet to be considered by the Council which may or may not endorse it.  The Council may thus decide that there is no case justifying a referral to the Disciplinary Panels.  If the Disciplinary Panels are seized of the matter and a Disciplinary Committee is convened, HLB would have every opportunity to mount a vigorous defence in the ensuing hearings.  Even after that, there would still be the possibility of appeal to the Court of Appeal.

70.  The matter has a long way to go before any binding administrative decision is reached.  At present, the matter does not seem “ripe” for judicial review.  In such cases, judicial review will not normally be appropriate.  Adminstrative remedies have yet to be exhausted.  As Professor Beatson observes, judicial restraint is necessary in such situation:-

“to prevent the courts ... from entangling themselves in abstract disagreements over administrative policies, and also to protect [administrative] agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties”. See Beatson, “Prematurity and Ripeness for Review” in The Golden Metawand and the Crooked Cord: Essays on Public Law in Honour of Sir William Wade QC (ed. Forsyth and Hare), p.222, quoting from Abbott Laboratories v. Gardner 387 US 136, at 148 (1967).

71.  I do not agree with Mr Mok that the gravity of the IC’s alleged “error” is so fundamental that it cannot be cured by a subsequent hearing before a Disciplinary Committee.

72.  Mr Mok observes that, while the investigations of an IC are kept confidential, proceedings before a Disciplinary Committee will normally be held in public.  Such public disciplinary hearings may (Mr Mok submits) have a detrimental effect on the reputation of a professional accountant.  Accordingly, Mr Mok suggests that, by way of an exception to the principle of exhaustion of remedies, HLB should be allowed to challenge the IC’s decision now before irreversible damage is done to HLB’s professional reputation.

73.  However, as Mr Shieh points out, adverse allegations made against a person are a hard fact of life.  Indeed, I do not see how a premature application for judicial review can stave off having to deal with such aspersions substantively, since judicial review hearings are themselves typically (as here) conducted in open court.  At the end of the day, if the aspersions against one are somehow misconceived, then one will presumably vindicate one’s self and one’s reputation by refuting those aspersions in any disciplinary hearing or appeal therefrom.

74.  I consequently do not accept Mr Mok’s premise that the potential damage to HLB’s reputation which may arise from publicity consequential upon the IC’s decision is incurable.  I do not think that the present case justifies a departure from the principle that available remedies need to be exhausted before embarking upon a judicial review. 

75.  I note that in any event in this case, as an extra safeguard, where justice demands, PAO s.36 empowers a Disciplinary Committee, of its own motion or upon the application of a party, to direct that disciplinary proceedings be heard in private.      

IV.   CONCLUSION

76.  HLB’s judicial review fails.  HLB’s motion is dismissed.  I shall now hear counsel on costs and consequential orders.