CHAO PAK KI, RAYMUND AND ANOTHER v. THE HONG KONG SOCIETY OF ACCOUNTANTS (a body corporate)

HCAL 134/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO.134 OF 2003

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J U D G M E N T

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Introduction

1. The applicants, who have instituted proceedings for judicial review, seek orders prohibiting the publication of their names during the course of those proceedings. Their application arises out of the following history.

2. The applicants are professional accountants registered pursuant to s.24(1) of the Professional Accountants Ordinance, Cap.50 ('the Ordinance'). As such, they are subject to the governance of the Hong Kong Society of Accountants, a body corporate formed pursuant to s.3 of the Ordinance. The management and control of the Society is vested in the Council of the Society. Among the Council's many statutory powers is the power to refer complaints concerning the conduct of accountants to a disciplinary panel and to appoint a disciplinary committee drawn from that panel to inquire into such complaints.

3. In June 2002, the Council formed a disciplinary committee to enquire into a complaint made by the Stock Exchange of Hong Kong to the effect that the applicants may have been negligent in the discharge of their professional duties. The complaint arose out of the applicants' audit for the year ended 31 March 1997 of the financial statements of a listed company known as Climax International Company Limited.

4. The applicants denied any professional negligence and continue to do so.

5. During the course of the enquiry, two members of the five-member disciplinary committee had to resign. Although they were replaced on the committee, this led to a dispute as to the jurisdiction of the reconstituted disciplinary committee. The applicants contended that the committee now lacked the jurisdiction to continue the enquiry or alternatively, contended that, having regard to the circumstances, they could no longer be guaranteed a fair and impartial hearing before the reconstituted committee. The applicants sought to have the committee dissolved. The Council declined their request.

6. As a consequence, on 31 December 2003 the applicants filed a notice of application for leave to apply for judicial review seeking orders of certiorari to quash the decision of the Council and a subsequent decision of the disciplinary committee itself to continue its enquiry. The applicants further sought a stay of the disciplinary proceedings until the question of the constitutionality of the reconstituted disciplinary committee had been determined at law. In addition, the applicants sought an order of anonymity to the following effect; namely, that :

"... the name of the 1st Applicant should appear as the letter 'L (an accountant)', and the name of the 2nd Applicant should appear as the letters 'AB (a firm)', in any report on this action and in the titular page of any judgment released to the public; and further an Order that the naming or the publication of anything leading to the identification in this action of the Applicants, other than as described, is prohibited ..."

7. On a consideration of the papers, I granted leave to apply for judicial review to the applicants and ordered that there be a stay of the disciplinary proceedings. As to the requested order of anonymity, however, I directed that there be an inter partes hearing.

8. Mr Hunsworth, counsel for the respondent, has informed me that the Council, having regard to the public interest, as it sees it, is not prepared to concede that this is an appropriate case for the granting of an anonymity order. Accordingly, the matter falls for determination on a contested basis.

9. It is not disputed that this court possesses jurisdiction to grant an order of anonymity. The power to make such an order part of its inherent jurisdiction - arises out of the power to control its proceedings in the interests of the administration of justice : see, for example, L v. Equal Opportunities Commission and Others (unreported) CACV 265/2002.

The scope of the order

10. Mr Patterson, counsel for the applicants, has emphasised that no application is made for the judicial review hearing itself to be held in camera. All that is sought, he has said, is a 'temporary' suppression of the applicants' names. It is temporary, he has said, because, once the issues which are the subject of the judicial review application have been finally determined in law, then, whatever the outcome, the applicants concede that their names may then be revealed.

11. But is the order sought a temporary one? While I accept that a temporary order may be made if the factual circumstances dictate such a course, in the present instance the order that is sought is one which will protect the applicants' identities until the judicial review proceedings have been finally determined. What they seek, therefore, is an order protecting them from what they perceive to be the personal and professional disadvantages of public attention until the entire span of the court proceedings have become a matter of history. In my view, that amounts to seeking a permanent order. I say that because, if I grant the requested order, I must do so to protect the integrity of the administration of justice; that is, the integrity of the process, not simply the published results of that process.

The general approach

12. The guiding principle in matters of this kind has been stated by Sir John Donaldson MR in R v. Chief Registrar of Friendly Societies, ex parte New Cross Building Society [1984] 1 QB 227 at 235D-F :

"The general rule that the courts shall conduct their proceedings in public is but an aid, albeit a very important aid, to the achievement of the paramount object of the courts which is to do justice in accordance with the law. It is only if, in wholly exceptional circumstances, the presence of the public or public knowledge of the proceedings is likely to defeat that paramount object that the courts are justified in proceeding in camera. These circumstances are incapable of definition. Each application for privacy must be considered on its merits, but the applicant must satisfy the court that nothing short of total privacy will enable justice to be done. It is not sufficient that a public hearing will create embarrassment for some or all of those concerned. It must be shown that a public hearing is likely to lead, directly or indirectly, to a denial of justice."

13. The discretion vested in the courts must be guided, therefore, by the underlying principle that any interference with the public nature of court proceedings is to be avoided unless justice requires it.

14. The circumstances in which justice may require an interference with the general rule has been considered by the English Court of Appeal in R v. Legal Aid Board, ex parte Kaim Todner [1999] QB 967 in which Lord Woolf MR said the following (at 978B-G) :

" In deciding whether to accede to an application for protection from disclosure of the proceedings it is appropriate to take into account the extent of the interference with the general rule which is involved. If the interference is for a limited period that is less objectionable than a restriction on disclosure which is permanent. If the restriction relates only to the identity of a witness or a party this is less objectionable than a restriction which involves proceedings being conducted in whole or in part behind closed doors.

The nature of the proceedings is also relevant. If the application relates to an interlocutory application this is a less significant intrusion into the general rule than interfering with the public nature of the trial. Interlocutory hearings are normally of no interest to anyone other than the parties. The position can be the same in the case of financial and other family disputes. If proceedings are ex parte and involve serious allegations being made against another party who has no notice of those allegations, the interests of justice may require non-disclosure until such a time as a party against whom the allegations are made can be heard.

A distinction can also be made depending on whether what is being sought is anonymity for a plaintiff, a defendant or a third party. It is not unreasonable to regard the person who initiates the proceedings as having accepted the normal incidence of the public nature of court proceedings. If you are a defendant you may have an interest equal to that of the plaintiff in the outcome of the proceedings but you have not chosen to initiate court proceedings which are normally conducted in public. A witness who has no interest in the proceedings has the strongest claim to be protected by the court if he or she will be prejudiced by publicity, since the courts and parties may depend on their co-operation."

The merits of the application

15. As I have indicated earlier, Mr Patterson has emphasised that what is sought by the applicants is limited to a restriction on the publication of their names. This, he has said, constitutes no more than a 'minimal' interference with the administration of justice. While I accepted that it is less draconian than an order which results in the proceedings as a whole being held behind closed doors, I do not see the interference as being of such little moment as Mr Patterson has advocated. Inherent in the principle of open justice is that, unless the interests of justice otherwise dictate, the identity of the parties should be known. No doubt, a great many litigants would rather enter into litigation behind the shield of anonymity but, as Lord Woolf MR said in R v. Legal Aid Board, ex parte Kaim Todner (supra, para.14), parties to litigation have to accept the embarrassment and damage to their reputation and the possible consequential loss which can be inherent in being involved in litigation. The protection to which they are entitled is provided not by anonymity but by a judgment delivered in public which will refute unfounded allegations or misplaced suspicions.

16. It must also be remembered that the present proceedings are brought in the field of public law. They go directly therefore not simply to the interests of the applicants and the Society but, of equal importance, to the broader public interest. Such interest on the part of the public is an entirely legitimate one. The accountancy profession plays a critical role in ensuring the orderly and lawful conduct of commercial activities. Dishonesty, dereliction or culpability on the part of its members can and does have a far-reaching effect, not only in the sphere of business activities but in matters concerning the financial well-being of individuals.

17. As Mr Hunsworth pointed out, a reading of the Ordinance shows that the legislature has placed the responsibility of governing the accountancy profession on the profession itself. All the more reason therefore for court proceedings which arise out of the manner in which the profession is attempting to regulate itself to be transparent.

18. In the present case, Mr Patterson has pointed to the fact that the applicants, while they are the subject of disciplinary proceedings, have not yet been found culpable of any professional negligence or wrongdoing. Publicity at this time therefore would be unfairly prejudicial to the applicants and would, to use Mr Patterson's words, amount to a public censure without a fair hearing. I fail to see, however, that there is a difference of any real materiality in a challenge to the lawfulness of disciplinary proceedings that have not yet come to a determination and those that have. Indeed, in my view, it may be argued that a person who has been condemned unlawfully in private disciplinary proceedings has a greater reason to seek anonymity when he challenges those proceedings by way of judicial review than one who has not yet incurred any such wound to his reputation. In my judgment, despite the skill with which it has been advocated, Mr Patterson has attempted to create a distinction where no distinction exists.

19. In the present case, I believe that the dicta of Keith J (as he then was) in Re The Takeovers And Mergers Panel [1996] 3 HKC 379, at 381, is entirely apt :

"In my judgment, the applicants' concern in this case is no more than to avoid the embarrassment which the public disclosure of the disciplinary proceedings and the reprimand would cause. The facts that the proceedings took place and that the reprimands were administered in private are not, in my view, to the point. Proceedings in court, particularly proceedings by way of judicial review because they relate to decisions (whether decisions made in secret or not) made in the public field, must be held in public (unless required by rules of court be held in private) unless justice would be denied."

20. In the present case, I note that no reason of a pressing nature personal to the applicants or their families, such as ill health, have been argued. What it boils down to therefore is that the applicants wish to avoid any professional embarrassment that may arise from publication of the fact that they are the subject of a disciplinary inquiry. But that on its own, in my view, is not sufficient to justify this court - exercising its supervisory jurisdiction over such public authorities as the Society - in interfering with the public nature of its proceedings.

Conclusion

21. For the reasons given, the application for an order of anonymity must be dismissed. As to costs, there will be an order that costs are awarded to the respondent in any event.