CHIANG SHAM LAM ANTHONY AND ANOTHER v. ACCOUNTING AND FINANCIAL REPORTING COUNCIL

CAMP 124/2025

[2026] HKCA 391

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 124 OF 2025

(ON AN INTENDED APPEAL FROM THE DETERMINATION OF THE ACCOUNTING AND
FINANCIAL REPORTING REVIEW TRIBUNAL PROCEEDINGS NO AFRRT-3-2024)

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J U D G M E N T

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Hon Harris J (giving the Judgment of the Court):

The Applications

1.  We have two applications before us.  The first is for leave to appeal.  The second is for stay of execution pending determination of the appeal for which leave is sought.

2.  The application for leave to appeal is against the determination (“Determination”)  of the Accounting and Financial Reporting Review Tribunal (“Tribunal”)  dated 21 May 2025 (AFRRT-3-2024)  upholding two decisions (“Decisions”)  of the Accounting and Financial Reporting Council (“Council”)  dated 18 June 2024 sanctioning the Applicants for professional irregularities and misconduct.  The sanctions were an order for public reprimand, a financial penalty (HK$250,000 each), cancellation of their respective registrations under the Professional Accountants Ordinance, Cap. 50 and suspension for 3 years.  The irregularities and misconduct were in relation to the audit of five companies (“Companies”)  and failing to devise internal control procedures to prevent the breaches and non-compliance.  The 1^st Applicant, his Wife and/or his Mother owned shares or held directorships in the Companies.  The Applicants had audited the Companies for 22 years.  The review brought under section 37Q of the Accounting and Financial Reporting Council Ordinance, Cap. 588 (“Ordinance”)  was of the suspension orders only and was dismissed by the Tribunal.  What they seek, to quote the draft Notice of Appeal, is “less onerous sanction”.

Background

3.  The relevant facts have been set out in detail at [19]–[37] of the Determination and the Statement of Agreed Facts appended therein.  It is only necessary to provide the following overview.

4.  On 16 April 1996, Mr Chiang Sham Lam Anthony (“Mr Chiang”)  was registered as a member of the Hong Kong Institute of Certified Public Accountants (“HKICPA”).  On 24 June 1997, Anthony S L Chiang & Co (“Firm”)  was registered as a CPA firm in Hong Kong.  At all material times, Mr Chiang was the sole proprietor of the Firm.

5.  Between 1996 and 2021, Mr Chiang and the Firm audited the financial statements of the following five Companies:

(1)  Easegood Investment Limited (“Easegood”)  between 9 July 2003 and 31 December 2019;

(2)  Lancaster Capital Limited (“Lancaster Capital”)  between 9 January 1999 and 31 March 2020;

(3)  Grand Regency Limited (“Grand Regency”)  between 2 July 1996 and 31 December 2019;

(4)  Honey Nominees Limited between 2001 and 2021; and

(5)  Adeyfield Company Limited between 2001 and 2019.

6.  Between 1993 and 2022, Mr Chiang, his Wife and/or his Mother acted as company secretary and/or held a directorship and/or had a direct or indirect financial interest in the Companies[1].

Investigation by the HKICPA

7.  On 13 May 2022, the HKICPA made an enquiry with the Applicants in relation to their audits of the financial statements of Easegood (for the years ended on 31 December 2008 to 2016), Lancaster Capital (for the year ended on 31 March 2016)  and Grand Regency (for the years ended on 31 December 2003 to 2016).

8.  On 26 May 2022, Mr Chiang wrote to the HKICPA for and on behalf of himself and the Firm, admitting that (“Representations”):

(1)  He and the Firm had audited the financial statements of Easegood, Lancaster Capital and Grand Regency for various financial years when he was their director; and

(2)  He was aware of the relevant independence requirements under the Code of Ethics for Professional Accountants (“COE”)  and had “inadvertently” failed to comply with those requirements.

9.  On 3 August 2022, the Applicants were informed by the HKICPA that the matter would be transferred to the Council for continued processing pursuant to the transitional provisions[2] of the Financial Reporting Council (Amendment)  Ordinance 2021 which came into operation on 1 October 2022.

Investigation by the Council

10.  On 28 November 2022, the Applicants were informed by the Council of an investigation in relation to their audits of the financial statements of the Companies.

11.  On 12 December 2022, Mr Chiang confirmed with the Council that he and the Firm would adopt their Representations to the HKICPA for the purposes of the Council’s investigation.

12.  The Council sent two draft investigation reports to the Applicants for comments on 1 February 2023 and 4 August 2023 respectively.

13.  On 27 September 2023, the Applicants through their solicitors, Messrs Munros (“Munros”), provided written representations to the Council in respect of the first draft investigation report. It was asserted that:

“As a matter of principle all these companies are SME’s and have had long relationships with Mr. Chiang and the Firm and do not require the kind of monitoring that a publicly listed company would need, or a special company such as Citibus (which is subject to a Scheme of Control)  or Ocean Park?

…

There is no allegation that material prejudice was caused by the alleged offence under Sections 140(2)  of the Companies Ordinance Cap 32 (the old Ordinance)  and Section 393(2)  of the new Companies Ordinance Cap 622 (which became law in 2016). Nor was actual harm caused to these companies or their shareholders, in that as auditor, he ought to have brought to the attention of either, material irregularities.

…

So in essence we are dealing here with technical breaches of both Sections which Mr. Chiang and the Firm ought to have become aware of, when dealing with their client portfolio of SMEs.

…

Mr. Chiang and the Firm are just a small firm of accountants with 4 or 5 staff servicing SMEs and should not be ascribed with the same knowledge and depth of accountancy law as it applies to their practices, as say PWC or Deloittes. Any period of suspension will have a devastating effect as he is the sole practitioner.

…

None of these companies have in fact paid audit fees for the period and certainly since 2016 during which period Mr. Chiang has caused the office staff to check. So here we are dealing with doing favours to family and friends has caused Mr. Chiang and the Firm apparently dire consequence.”

14.  On 19 December 2023, the Council issued Notices of Proposed Disciplinary Action (“NPDAs”)  to the Applicants.

15.  On 25 January 2024, Munros provided further written representations to the Council on behalf of the Applicants.  The Representations did not dispute any of the allegations in the NPDAs, although they sought to argue that the correct approach towards sanction should be by reference to the “Guideline to Disciplinary Committee for Determining Disciplinary Order” published by the HKICPA in October 2017 (“2017 Guideline”).

Applicable Professional Standards

16.  On 18 June 2024, the Council issued the two Decisions to the Applicants sanctioning them for professional irregularities and misconduct.

17.  Based on the Statement of Agreed Facts, the Council found and the Applicants accepted that they had failed to observe, maintain or otherwise apply the following professional standards constituting professional irregularities under section 3B(1)(c) of the Ordinance:

(1)  Paragraph 2 of the Statement section and paragraphs 3, 12, 13 and 15 of the Guidelines section of Statement 1.203, i.e. Professional Ethics – Integrity, Objectivity and Independence of the Members’ Handbook of the Hong Kong Society of Accountants (now the HKICPA);

(2)  Paragraph 4 of Statement 1.203A, i.e. Independence for Assurance Engagements of the Members’ Handbook of the HKICPA;

(3)  Paragraph 3 of Statement 1.303, i.e. General Guidance – Restrictions on Appointments as Secretaries and Directors of Audit Clients of the Members’ Handbook of the HKICPA;

(4)  The following paragraphs of the COE applicable at the relevant times:

(a)  Paragraphs 290.106, 290.108, 290.136, 290.138, 290.147 and 290.151 of the COE issued in December 2005 and effective since 30 June 2006;

(b)  Paragraphs 290.104, 290.105, 290.128, 290.130, 290.146 and 290.148 of the COE revised in June 2010 and effective since 1 January 2011;

(c)  Paragraphs R510.4, 510.10 A5 to 510.10 A8, R521.5, 521.6 A1 to 521.6 A4, R523.3 and R523.4, Chapter A of the COE issued in November 2018, effective since 15 June 2019 and revised in July 2020;

  (5)  In respect of Mr Chiang only, the following paragraphs of the Hong Kong Standard on Auditing 220 – Quality Control for Audits of Historical Financial Information (“2005 HKSA 220”)  and the Hong Kong Standard on Auditing 220 – Quality Control for an Audit of Financial Statements (“2009 HKSA 220”)  applicable at the relevant times:

  (a)  Paragraphs 12 and 13 of the 2005 HKSA 220;

  (b)  Paragraphs 9 to 11 of the 2009 HKSA 220; and

  (6)  The following paragraphs of the Hong Kong Standard on Quality Control 1 – Quality Control for Firms that Perform Audits and Reviews of Financial Statements, and Other Assurance and Related Services Engagements (“HKSQC 1”):

  (a)  Paragraphs 9, 18 to 20 and 23 of the 2005 HKSQC 1; and

  (b)  Paragraphs 13, 18, 21 to 24 of the 2009 HKSQC 1.

18.  By way of a Notice of Review dated 6 August 2024, the Applicants applied for a review of the Council’s Decisions before the Tribunal pursuant to section 37Q of the Ordinance.  The Tribunal dismissed the application in its Determination dated 21 May 2025.  By way of a summons dated 20 June 2025, the Applicants applied for leave to appeal against the Tribunal’s Determination before this Court pursuant to section 37ZG of the Ordinance.

Grounds of Appeal

19.  The Applicants rely on five grounds of appeal, which can be summarised as follows.

Ground 1

20.  An error of law in refusing to apply established principles and methodology of sentencing.  The Applicants argue that the proceedings before the Tribunal (and necessarily it would seem to follow the Council)  are “suits at law” for the purposes of Article 10 of the Hong Kong Bill of Rights and hence the Applicants had a fundamental right to fair proceedings (Article 6).  The Council and the Tribunal can impose significant sanctions.  Consequently, the Applicants reason the Council and the Tribunal need to apply principles and a structured methodology so as to achieve consistency and fairness in determining sanctions.  Notions of fairness and common sense oblige the Tribunal and the Council, and I quote from the Applicants’ Statement, “to apply the established principles and methodology, involving (1)  an avowed ‘starting point’; (2)  proper consideration to genuine mitigating factors; (3)  arriving at a sanction, which is demonstrably proportionate and justified, a fortiori, in meting out a sanction of unprecedented severity” as suspension.

Ground 2

21.  Failing to identify a “starting point”.  By this the Applicants would appear to mean that the Tribunal has not identified a recognised category of seriousness, which in practice would mean one of the categories of misconduct described in Part 6 of the 2017 Guideline.  The Applicants also complain under this ground that the Tribunal has failed to explain the weight that has been given to the accepted mitigating factors.

Ground 3

22.  The Applicants had a legitimate expectation that the 2017 Guideline would continue to apply.  This expectation is said to arise and be justified by the indications in the LegCo Brief for the introduction of the new regime that the change would be seamless and by virtue of the delay caused by the change, which they could reasonably expect, would not disadvantage them. It is not explained why the change did disadvantage the Applicants.

Ground 4

23.  The Determination was incoherent in that the Tribunal having found that the evidence did not justify findings of “deliberate” or “blatant disregard” which had been found by the Council, fairness dictated that the Tribunal should have reduced the sanctions.

Ground 5

24.  Although the sanctions imposed in previous cases are not binding on the Council or the Tribunal, they should have been used as a reference point (a)  particularly as no “starting point and detailed reasons for treatment of mitigating factors” were given and (b)  the suspension orders are said by the Applicants to be of unprecedented severity.  Comparable cases involving audits of private companies have resulted in a fine and reprimand.

Principles governing applications for leave to appeal

25.  The Court will not interfere with the decision of a tribunal or other entity charged with determining and sanctioning professional misconduct unless either it is demonstrated that the tribunal has misdirected itself on a material point of law or the decision on the facts falls outside the range of decisions that a tribunal properly directing itself as to the material considerations would have reached[3].

26.  It is well established that the Court should not interfere with a sanction imposed by a professional body charged with determining and sanctioning professional misconduct unless the Court is satisfied, that it was plainly wrong, excessive or disproportionate.  This reflects recognition by the Court that bodies empowered to determine professional misconduct are normally best placed to judge and sanction it[4].  In relation to sanctions, statements to this effect appear in cases in which the decision has been made by a tribunal consisting of members with experience of the profession.  This was the case in the membership of the Council, but not the Tribunal, which consisted of one senior counsel.  We do not, however, think that this alters the principle.  The Tribunal was established by the Ordinance to review decisions of the Council.  Its Chairperson must be assumed to have an aptitude for the role and overtime to acquire a familiarity with the subject matter of the cases that come before it and professional considerations relevant to determining misconduct and assessing the appropriate sanction when misconduct has been found.

27.  To obtain leave it is necessary for the Applicants to demonstrate that (1)  the appeal has a reasonable prospect of success or (2)  there is some other reason in the interests of justice why the appeal should be heard[5]. In the context of an appeal, “a reasonable prospect of success” means that the prospect of succeeding must be more than fanciful, without having to be probable[6]. In other words, the applicant must show more than just an arguable case, but an appeal that has merits and ought to be heard[7].  Circumstances in which the Court of Appeal would find that there is “some other reason in the interests of justice that the appeal should be heard” are not exhaustive.  The Court of Appeal may grant leave if the question is one of general principle, decided for the first time; or a question of importance upon which further argument and a decision of the Court of Appeal would be to the public advantage[8].

28.  It is, therefore, necessary for the Applicants to demonstrate that it is reasonably arguable that either the Tribunal erred in determination of the principles that should guide its determination of the sanctions or that the sanctions are plainly excessive.

Discussion

29.  Collectively these grounds constitute a case that the Council and the Tribunal approached the determination of the sanctions (1)  in an unprincipled manner and (2)  imposed demonstrably excessive sanctions.

30.  The Applicants made submissions to the Council that were substantially the same as those advanced in the draft Notice of Appeal. The Council addressed them in its Decisions dated 18 June 2024.  The Council rejected the argument that the 2017 Guideline was applicable.  The Council explained that it is clear from section 65(1) of the Transitional Regulation that misconduct that occurred before the transition date is to be dealt with under the Ordinance as if the misconduct occurred after the transition date, as was the case in this matter.  The Council took the view that the 2017 Guideline was directed to the previous statutory regime and had no application to the new one.  However, even if they did apply the Council considered that it made no difference to its determination as the Court of Appeal decision in Practice Review Committee of the Hong Kong Institute of Certified Public Accountants v Ng Kay Lam[9]establishes that a deviation from the 2017 Guideline is not of itself a valid ground of appeal as the legislation does not provide a scale of seriousness and the 2017 Guideline is expressly not binding.

31.  The Council addressed the table of decisions submitted by the Applicants to demonstrate that suspension should not be imposed.  The Council observed that the Applicants had not explained in any detail how the decisions were relevant.  However, the Council went on to explain why it considered that there are differences between them and the case before it.  In particular, the Council noted that the overseas cases are irrelevant as they arise under different statutory regimes and in different circumstances to those in Hong Kong.  Peter P.F. Chan v Hong Kong Society of Accountants[10] is cited to support this view.

32.  The Council addressed the Applicants’ submission that “general sentencing practice in criminal cases” should be followed.  The Council rejected this submission.  Plainly, the Council was correct to do so. Disciplinary proceedings are civil proceedings not criminal proceedings[11].

33.  The Council detailed the matters relied on by the Applicants by way of mitigation.  The fact that the Companies are small private companies was addressed in detail.  The Council referred to the judgment of Yuen JA in Registrar of the Hong Kong Institute of Certified Public Accountants v Cheung Yiu Hung[12], who observed in [34] that “… Whilst a failure to observe professional standards may be made more egregious when a public company is involved, it cannot be a reason for letting professional standards slip that an accountant’s firm was a small one or his clients were small companies.  An accountant is accorded the privilege of practice by virtue of membership of his professional body.  For that privilege, he has to comply with its standards, whether or not he considers them to be too demanding for him, and whether his firm is big or small, and irrespective of the status of his clients.”  The Council also referred to a similar observation of the Court of Appeal in Ng Kay Lam v The Registrar of the Hong Kong Institute of Certified Public Accountants[13] that whether a conflict of interest arises does not turn on the smallness of the company.  The Council noted, undoubtedly correctly, that the misconduct in the present case is precisely what is prohibited, namely, a close relationship between the auditor and the owners of the company audited.  The Council also noted that the Applicants were paid for their services.  The submission that the fact that the Companies were small and private was a materially mitigating factor was expressly rejected for clear and coherent reasons.  There is no reason not to think that the Council considered the other mitigating factors to which it expressly referred when determining the sanctions.

34.  A hearing took place before the Tribunal on 28 November 2024, which was chaired by Jonathan Chang SC, who was the sole member of the Tribunal.  The Determination is dated 21 May 2025.  The Tribunal explained that the review of the Council’s decision is a hearing de novo and the Tribunal was undertaking a merits review of the sanctions imposed.

35.  The Applicants’ case, as presented to the Tribunal, was divided into 4 grounds.  The first was that the disciplinary proceedings had characteristics of criminal proceedings and criminal sentencing principles should be followed and consequently, in particular, the 2017 Guideline, which was in force at the time of the commission of the misconduct, should be applied. Alternatively, the Applicants had a legitimate expectation that the 2017 Guideline would be applied.  The Tribunal took the view that the proceedings brought against the Applicants were properly characterised as disciplinary proceedings[14]. The Tribunal set out its reasons:

(1)  There is no basis for suggesting the Ordinance intended disciplinary charges to be criminal in nature.  This is demonstrated by the fact that section 37(T) provides that the civil standard of proof applies.

(2)  The nature of the complaint is disciplinary in nature.

(3)  Although the Ordinance allows the Council to impose a pecuniary penalty (as it did in the present case)  this, alone, is not indicative of the proceedings being criminal in nature.  In order for it to do so the penalty must be imposed by way of punishment.  In the present case, the purpose is to uphold proper standards of conduct, maintain public confidence in the accountancy profession, protect the public and deter similar misconduct in the future.

36.  In our view, the Tribunal’s reasoning in this regard is plainly correct.  This conclusion is not affected by the 3 cases relied on by the Applicants before the Tribunal and which, as the Tribunal demonstrated, do not support the proposition that the proceedings are criminal in character: Lam Siu Po v Commissioner of Police[15]; Aaron v Law Society[16]and Musonza v Nursing and Midwifery Council[17].  We agree.

37.  Having reached the conclusion that the proceedings do not involve the determination of a criminal charge, the Tribunal concluded that there was no basis for importing criminal sentencing principles.  We agree with the Tribunal that there is nothing inherently objectionable in a person being disciplined in accordance with the guidelines in force at the time of the sanctions.  Disciplinary proceedings are primarily preventative and protective in nature.  Appropriate sanctions may be determined by reference to what is necessary to uphold standards of the profession in the light of the state of the profession at the time[18].

38.  There was plainly no evidential basis for asserting as the Applicants did that the Applicants had a legitimate basis for expecting that in the event proceedings for misconduct were brought against them, any sanction imposed would be assessed by reference to whatever guidelines were in force at the time the wrongdoing was committed.  As the Tribunal noted, the artificiality of this argument is demonstrated by the fact that the 2017 Guideline (as its date suggests)  was not in force during most of the period of the Applicants’ misconduct.

39.  Despite finding that the 2017 Guideline was not applicable, the Tribunal considered whether it, if applicable, would alter the sanctions to be imposed.  The 2017 Guideline identifies three different “starting points” when considering what sanctions to impose.  In practice, what this means is that misconduct is divided into one of three categories: moderately serious, serious and very serious.  For each category, a range of sanctions is suggested.  Cancellation of a practicing certificate for more than 1 year is a sanction envisaged for very serious misconduct only.  The Applicants argued that their misconduct did not fall into this category.  As the Tribunal observed, the 2017 Guideline is just that, a guideline.  They do not fetter the Council or the Tribunal if they consider that the facts of a case justify some deviation from the simple characterisation of the misconduct in the 2017 Guideline, namely, moderately serious, serious and very serious.  This is expressly provided in Part 7 of the 2017 Guideline.

40.  The Applicants argued that the misconduct was properly characterised as moderately serious and for this, the “suggested sanction” was no more than cancellation of a practicing certificate for 1 year.  The Tribunal noted that the Council had set out in detail its assessment of the gravity of the Applicants’ misconduct, which the Council considered very serious misconduct and which necessitated a strong deterrent.  We read [60] of the Determination as adopting this reasoning.

41.  Grounds 3 and 4 advanced before the Tribunal are directed to whether the suspension orders were correctly imposed.  The Tribunal took the view that it was dealing with the matter de novo and that approaching the question by reference to criteria encapsulated in language such as “undue harshness”, “manifest excessiveness” or “disproportionality” drawn from the criminal law and judicial reviews was inapposite and unhelpful. The Tribunal took the view that the suspension for 3 years was both correct in principle and justified on the facts for the following reasons.

(1)  Independence of an auditor is of fundamental importance and lies at the heart of every audit.

(2)  The integrity of Hong Kong’s financial markets and its position as an international financial centre is a matter of prime public importance and maintaining confidence in the market is of great importance.

(3)  The function of an auditor is clearly compromised if the auditor holds a financial interest in the company to be audited and professional standards contain express and absolute prohibitions against a person acting as an auditor for companies of which the auditor or their family members is a shareholder or office holder.

(4)  The Applicants’ breaches were grave since they were contrary to the very nature of an auditor’s role and showed a fundamental disregard for their professional duties and independence.  They had also lasted for an extensive period of 22 years.

(5)  The Applicants had failed to establish and maintain a system of compliance and control to ensure compliance with the independence requirements.

(6)  The Tribunal had regard to the mitigating factors advanced on behalf of the Applicants.  The Tribunal accepted that the case did not involve allegations of fraud, dishonesty or financial loss.  The Tribunal did not find that the misconduct involved deliberate breaches of the professional standards or that the financial statements were inaccurate.  The Tribunal acknowledged that the Applicants had an otherwise unblemished record and that suspensions would have an adverse effect on the Applicants’ practice.  However, it took the view that these were subsidiary considerations once the seriousness of the misconduct was understood.

(7)  The Tribunal took the view that in considering the length of the suspension, other cases were not helpful because they were fact specific.  It accepted the Respondent’s submission that sentences imposed by disciplinary bodies were not designed as precedents[19]. The Tribunal distinguished the facts of the present case from The Registrar of the Hong Kong Institute of Certified Public Accountants v Ernst & Young (a firm)[20].

42.  The Applicants characterise their misconduct as moderately severe and do so because they assume that since the companies audited were small and private this necessarily makes it less serious.  This reason betrays two errors.  First, a failure to recognise that it is fundamental to the scheme for statutory audits that the auditor is independent of the company.  The Applicants must have known this.  For a period of 22 years, they showed disregard for this central feature of the audit process.  Secondly, that the relevance of an audit client being a listed company or a substantially private one would be to elevate the seriousness of the misconduct.  If the audit client is a listed company, it would self-evidently be very serious misconduct, but it does not follow that if the audit client is a small private company, it is not.  What is of central relevance is the character of the misconduct and it is the same in both situations.  The Applicants’ failure to recognise this is betrayed by their reference in their Notice of Review to their misconduct being “relatively minor professional irregularities”.  They were not.

43.  In our view, the Applicants’ argument that in determining sanctions the Council and the Tribunal should undertake an exercise modelled on the criminal law for establishing and applying consistent sentences is misconceived for reasons to which we have already referred.  This is clear from the authorities.  There is no basis for the suggestion that the Tribunal made errors of law in rejecting the contrary argument.  It also seems clear to us that there is no basis for interfering in the sanctions imposed by the Council and the Tribunal.  The determination that a 3-year suspension was appropriate was within the range of sanctions that the Council and the Tribunal could determine was appropriate on the facts of this case.

44.  The Applicants have asked for a hearing of their applications.  This is unnecessary as the issues are clear and the Applicants’ grounds of appeal plainly fall short of meeting the test for granting leave. We dismiss the application for leave to appeal.  We also make a further order pursuant to Order 59, rule 2A(8) of the Rules of the High Court, Cap. 4A (“RHC”)  that no party may request the determination to be reconsidered at an oral hearing inter partes.

45.  The application for a stay necessarily is dismissed.  That said, there is a point of procedure, which we wish to address in the interest of completeness.

46.  At the outset, the Respondent objected to the Applicants’ stay application on the basis that this Court’s jurisdiction under section 37ZI of the Ordinance to grant a stay of execution only arises if it decides to grant leave to appeal to the Applicants under section 37ZG.  For this reason, the Applicants will not have locus to apply for a stay from the Court of Appeal as long as the leave application remains pending.  The Respondent submitted that the Applicants should, instead, have applied to the Tribunal for a stay of execution under section 37ZE of the Ordinance.  This is not least because the Tribunal would be more familiar with the case and the arguments advanced, and that its views would have been highly valuable to this Court[21].

47.  There are merits in the Respondent’s objection.  Any review before the Tribunal is conducted de novo as if the matter has come before it for the first time and it is the original decision-maker.  That a fact-finding tribunal is better placed than an appellate court to deal with any interlocutory application is reflected in RHC O59 r14(4), which provides that interlocutory applications relating to an appeal which may be made to the court below “shall not be made in the first instance to the Court of Appeal, except where there are special circumstances which make it impossible or impracticable to apply to the court below”.  Accordingly, we accept the Respondent’s submission that the Tribunal is better placed than this Court – which will neither hear the appeal afresh nor conduct any fact-finding exercise – to determine, in the first instance, whether a stay of execution is warranted.

48.  The Applicants disagreed that section 37ZE is the appropriate avenue.  First, the Applicants argued that section 37ZI is the lex specialis, which expressly allows a stay of execution pending appeal against the Tribunal’s Determination whereas section 37ZE relates to the general powers of the Tribunal to grant stays of execution.  Second, the Applicants argued that there is “substantial legal uncertainty” as to whether one can apply to the Court of Appeal for a stay under section 37ZI after the Tribunal’s refusal of the same under section 37ZE.  To avoid undermining the finality of the Tribunal’s determination or order as envisaged by section 37ZC of the Ordinance, the Applicants submitted that a party seeking stays of execution pending appeal may justifiably apply to the Court of Appeal directly.  In the alternative, the Applicants argued that such legal uncertainty coupled with the transitional arrangement involved in this case amount to “special circumstances” justifying a direct application to the Court of Appeal.

49.  We are not persuaded by the Applicants’ interpretation of sections 37ZC, ZE and ZI.  As regards the Applicants’ first argument, whilst section 37ZI is indeed the lex specialis, it only applies after a party to a review has obtained the relevant leave to appeal[22]. Since the Applicants have not yet obtained leave to appeal against the Determination at the time of the stay application, the only other applicable provision is section 37ZE which should have been relied on by the Applicants.  As regards the Applicants’ second argument, the powers of the Tribunal under section 37ZE and the powers of this Court under section 37ZI are, as correctly submitted by the Respondent, concurrent jurisdiction[23]. In this regard, the legal uncertainty that the Applicants seem to be suggesting is more apparent than real.  There are no “special circumstances” justifying a direct application to this Court under section 37ZI, and the stay application should have been made to the Tribunal under section 37ZE.

50.  Insofar as it is argued that the Court of Appeal can, in any event, invoke its inherent jurisdiction to order a stay of execution pending appeal, that argument is now arid[24] as we have, for the above reasons, refused leave for the Applicants to appeal against the Determination.

51.  In respect of both applications, we will make a costs order nisi that the costs of the applications be paid by the Applicants to the Respondent with a certificate for two counsel, such costs to be taxed if not agreed.