THE REGISTRAR OF THE HONG KONG INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS v. X AND ANOTHER

CACV 244/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 244 OF 2016

(ON APPEAL FROM THE ORDER OF THE DISCIPLINARY COMMITTEE OF THE HONG KONG INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS DATED 2 DECEMBER 2016)

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J U D G M E N T

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Hon Yuen JA:

1. I agree with the judgment of Kwan JA.

Hon Kwan JA:

2. This is an application to stay or restrain the publication of two decisions of the Disciplinary Committee of the Hong Kong Institute of Certified Public Accountants (“the Institute”) until the final determination of the appeal from the decisions (“the Decisions”), which were made in July and December 2016. The appeal is to be heard by the Court of Appeal in September 2017 with two days reserved.  The present summons was issued in January 2017 by the two respondents in the disciplinary proceedings who had the proceedings brought against them by the Registrar of the Institute (“the Registrar”) as the complainant.  The Registrar intended to publish an extract of the reasons in the Decisions and the order made in the Decisions on the website of the Institute in accordance with the policy of the Institute.

3. These questions are raised in the application: (1) whether the tribunal below, namely, the Disciplinary Committee, has jurisdiction to publish its decisions; (2) whether the Court of Appeal has jurisdiction to grant an interim injunction to restrain or stay the publication of a decision of the Disciplinary Committee pending an appeal to the Court of Appeal until its final determination; (3) if there is a statutory policy under the Professional Accountants Ordinance, Cap 50 (“PAO”) regarding the stay of publication of disciplinary decisions pending appeal; and (4) if the Court of Appeal does have jurisdiction, whether relief should be granted in the present case.

The Decisions and orders made

4. There were two complaints against the respondents in the disciplinary proceedings.  They were brought in the alternative.  The disciplinary proceedings of the respondents were heard in public, in accordance with section 36(1A) of the PAO[1].

5. In the decision in July 2016, the Disciplinary Committee held that the 1^st complaint was proved in that the respondents had failed or neglected to observe, maintain or otherwise apply paragraphs 11 and 13 of Hong Kong Standard on Auditing 700 (“HKSA 700”), for their failure to express a modified auditors’ opinion in respect of a listed company’s measurement of the fair value of the consideration shares in its financial statements.  The 2^nd complaint was not proved and was dismissed.

6. In the decision in December 2016, the Disciplinary Committee imposed the following sanction.  The respondents were ordered to be reprimanded under section 35(1)(b) of the PAO, they shall jointly pay a penalty under section 35(1)(c) and shall jointly and severally pay the complainant’s costs under section 35(1)(iii).  The Disciplinary Committee stated in §23 that it “finds no reason to prohibit the publication of the present order in accordance with the Institute’s prevailing publication policy.”

7. The respondents filed a notice of appeal to appeal against the Decisions on 28 December 2016.  On the same day, they applied to the Disciplinary Committee invoking section 35 of the PAO and/or Order 59 of the Rules of the High Court for a stay or suspension of the Committee’s order to publish the orders or any part thereof until the final determination of the appeal.  The Registrar responded to the application on 6 January 2017 asserting no justification for withholding the decision of the Committee from the public and stating his intention to upload the Decisions on the Institute’s website upon the expiry of seven days thereof.

8. On 12 January 2017, the Disciplinary Committee made a direction that it is functus officio after it has handed down its decision on sanctions and costs on 2 December 2016 and it agreed with the Registrar that as the matter is under appeal, the application is under the jurisdiction of the Court of Appeal.

9. The present summons was issued in the appeal proceedings on 11 January 2017.  For reasons which will become apparent, it does not seek a stay of the enforcement of the above orders of the Disciplinary Committee pending the determination of the appeal, only a stay of the publication of the Decisions in the interim.

Whether the Disciplinary Committee has jurisdiction to publish its decisions

10. Under rule 32 of the DC Rules[2], it is provided that the decision of the Disciplinary Committee shall be set out in writing and shall specify the terms of any order made. Rule 33 deals with the filing of orders and publication and provides as follows:

“The Clerk [to the Disciplinary Committee] shall file any order made by the Disciplinary Committee under sections 35(1) or 35B of the [PAO], or by-law 35(1) of the [Professional Accountants] By-laws, with the Registrar, who shall cause a copy of the order to be served forthwith on the Respondent either personally or by post addressed to his registered address and to be published in accordance with the provisions of the [PAO] and the prevailing policy of the [Institute].”

11. Mr Stock, SC[3] contended on behalf of the Registrar that under the above provision, it is the Registrar who is empowered to publish the decision of the Disciplinary Committee and hence the Committee has no authority or jurisdiction in respect of the publication of its decisions.  I do not agree with this. Rule 33 should be read as a whole and as making provision for a coherent scheme.  It provides for the duties to be carried out firstly by the clerk of the Committee (in filing the order with the Registrar) and then by the Registrar (upon the filing of the order by the clerk, in causing a copy of the order to be served on the respondent and to be published).  The duties are those of the Committee.  Rule 33 makes provision for the persons who are entrusted with discharging the specific duties for the Disciplinary Committee.

12. As express provision is made to empower the Disciplinary Committee to publish its orders and decisions, there is no need to rely on any implied power as submitted by Mr Mok, SC[4] on behalf of the respondents.

13. I reject also the contention on behalf of the Registrar that that the Disciplinary Committee has no jurisdiction to prohibit the publishing of the Decisions, leaving aside whether the Committee is functus officio in the present situation.  Under rule 11 of the DC Rules, it is provided that:

“The Chairman or the Disciplinary Committee may, in their discretion and at any stage of the proceedings, on request of the parties or on their own motion, dispense with or vary any of the requirements of these rules … or make such directions for the conduct of the proceedings as they consider appropriate …”

14. This is wide enough to confer power on the Committee to order that the decisions should not be published, or that the publication should be stayed for a certain period, or that publication should be made on certain terms.

15. It was reported in Registrar of Hong Kong Institute of Certified Public Accountants v Wong Tak Man Stephen [2016] 4 HKLRD 763 at §2.13 that in that case the Disciplinary Committee directed no publicity of the sanction should be made unless with the consent of the respondents.

16. I turn to the prevailing policy mentioned in rule 33, which is as follows[5].

17. The Institute considers it is obliged to adhere to the principles of the open administration of justice.  To this end, the Institute’s prevailing policy is that it will publish on its website:

(1) a list of all complaints referred to the Disciplinary Panels which includes the date of referral, the name(s) of the respondents and the identity of the Disciplinary Committee members responsible for hearing the matter;

(2) a hearing schedule, which sets out the dates of all substantive hearings scheduled to be conducted by Disciplinary Committees; and

(3) all disciplinary decisions where orders are made against any respondent for the past five years, and if the decision is subject to appeal, this statement will be included: “(Respondent is appealing the order of the Disciplinary Committee.)” The disciplinary decisions can be found under the heading “Standards and Regulation”, the sub-heading “Compliance”, the sub-sub-heading “Disciplinary” and the sub-sub-sub-heading “Disciplinary Orders”.  This is a separate section from the section of the website which allows persons accessing the website to search for members, firms and corporate practices.

18. According to the Institute’s website, disciplinary and regulatory findings will be published on the website for five years from date of issuance, and when the findings are removed from the website, details of the matter may still be available on other websites or in search results.

19. The Institute has never published any unsuccessful prosecution of complaints against professional members.  It is reviewing its publication policy in respect of cases where the respondents have not been found liable for a disciplinary offence[6]. Further, we are given to understand that there has never been a successful appeal to the Court of Appeal from a decision of the Disciplinary Committee, so it is not known if the decision of the court will be published on the Institute website or whether the previous publication would simply be removed.

20. In accordance with the prevailing practice, there were published on the Institute’s website the fact that the complaints against the respondents had been referred to the Disciplinary Panels, and the date of the substantive hearing.  As mentioned earlier, the substantive hearing was heard in public by the Disciplinary Committee.

Whether the Court of Appeal has jurisdiction to restrain or stay publication of a Disciplinary Committee decision pending appeal

21. The appeal from the Decisions is brought to the Court of Appeal by virtue of section 41 of the PAO.  Section 41(1) provides that “an appeal shall lie to the Court of Appeal by – … (b) a certified public accountant – … (iii) who is aggrieved by an order made in respect of him under section 35(1) …”. Section 41(3) provides:

“In any such appeal the Court of Appeal may exercise such powers as are vested in it by the High Court Ordinance (Cap. 4) and the practice and procedure shall be in accordance with the rules of court made under that Ordinance …”.

22. Section 13(2) of the High Court Ordinance, Cap 4 provides:

“The civil jurisdiction of the Court of Appeal shall consist of –

…

(c) any other jurisdiction conferred on it by any law.”

23. Section 13(4) of Cap 4 provides:

“For the purposes of and incidental to –

(a) the hearing and determination of any appeal to the Court of Appeal; …

the Court of Appeal shall have all the authority and jurisdiction of the court or tribunal from which the appeal was brought.”

24. The Registrar’s position is that the Court of Appeal has no jurisdiction to restrain or stay publication of a decision of the Disciplinary Committee pending appeal.  It was argued that the relevant “law” in section 13(2) of Cap 4 is section 41 of the PAO and the latter does not confer any jurisdiction in respect of the publication of decisions of the Disciplinary Committee.  It was further argued that the provisions in Order 59 of the Rules of the High Court, such as rules 10(1) and (9), do not confer such jurisdiction as the Rules of the High Court are subsidiary to the High Court Ordinance and cannot confer on the Court of Appeal any jurisdiction not available in the principal legislation, citing Registrar of Hong Kong Institute of Certified Public Accountants v Wong Tak Man Stephen at §5.7.

25. I do not agree with the above submission.

26. As I have held, the Disciplinary Committee does have jurisdiction to publish its own decisions and to prohibit or stay such publication on terms.  The interim injunction sought is clearly “for the purposes of and incidental to” the appeal, so pursuant to section 13(4), the Court of Appeal does have “all the authority and jurisdiction of the court or tribunal from which the appeal was brought.”

27. Further, I agree with Mr Mok that quite apart from section 13(4), the Court of Appeal does have an original jurisdiction to grant an injunction pending appeal, by virtue of Order 59 rules 10(1) and (9) (Ketchum International plc v Group Public Relations Holdings Ltd [1996] 4 All ER 374 at 378j to 379b, 381j).

28. I hold that the Court of Appeal does have jurisdiction to grant the stay or interim injunction sought in the present summons.  In reaching the above conclusion, I do not find it helpful to have regard to the two English decisions cited by Mr Mok, being In re a Solicitor [1924] 1 KB 699 at 700 to 701 and In re A Solicitor [1944] 1 KB 427.  The relevant provisions we are concerned with are quite simply different.

If there is statutory policy regarding stay of publication of disciplinary decisions pending appeal

29. Mr Mok submitted there is clear statutory provision to the effect that a sanction order made by the Disciplinary Committee under section 35(1) of the PAO does not become operative until the expiry of 30 days after the date of service of the order on the accountant[7] or, in the case of an appeal made to the Court of Appeal, before the appeal is finally determined.  In support of this, he referred to a number of provisions: sections 35(1)(i) and (ii)[8], 35(3)[9] and 38(2).  It is the last mentioned provision that is particularly pertinent and it reads as follows:

“The Registrar shall not remove the name of a certified public accountant from the register by virtue of an order under subsection (1)(a) of section 35, record a reprimand or penalty or an order to pay costs and expenses or an order in respect of practising certificate in the register by virtue of an order made under subsection (1)(b), (c), (d), (da) or (db) of that section or enforce payment of a penalty or costs or expenses under subsection (1)(c) or (d) of that section before the expiry of 30 days after the date of service of the order on the accountant or, in the case of an appeal made to the Court of Appeal against the order under section 41, before the appeal is finally determined.”

30. Mr Mok submitted it is plain from the above provision that the statutory policy is to ensure that a certified public accountant who may appeal, or has appealed, against an adverse order of the Disciplinary Committee should be protected from the execution of the order until the expiry of the time for appeal or the appeal is finally determined, as the case may be.  By section 38(2), a “statutory stay” pending appeal is imposed on each and every kind of sanction that may be ordered under section 35(1).

31. He contended that the statutory policy is not grounded on the basis that the execution of the order would render the appeal nugatory, since there is little reason to think that any penalty, costs or expenses paid to the Institute cannot be recovered upon a successful appeal.  He argued that the legislature must have intended that the accountant should not suffer the adverse effects of the order unless and until the same has been confirmed by the Court of Appeal.

32. Moreover, a reprimand is effectively enforced by publication.  Hence, publication of the reprimand pending appeal is directly contrary to the statutory policy underlying section 38(2) and would have the effect of undermining the same.  And since publication of an order or decision on the website would be far more damaging and prejudicial to the accountant than the recording of it in the register (which could have been expunged in the event of a successful appeal and protection from the adverse effects of recording in the register is given in section 38(2)), it would be wholly contrary to the statutory policy and legislative intent if such “reprimand or penalty or an order to pay costs and expenses” were to be published to the world at large pending an appeal, while the order has yet to be recorded in the register because of section 38(2).  He reasoned that even though there is no express prohibition of publication of the orders and decisions on the website, it would be contrary to the statutory policy for the orders and decisions to be published in this way pending an appeal.

33. Mr Stock submitted that reliance on section 38(2) is misconceived, nor is there a statutory policy or legislative intent as contended by the respondents.  He argued that the statutory policy or legislative intent must be read in the light of the principle of open justice which is of great importance to the proper administration of justice.  The court should be slow to find there is a statutory policy or legislative intent as contended, which would appear to conflict with the principles of open justice, in the absence of express and clear language.  Case law has firmly established that considerations of publicity of litigation leading to embarrassment and inconvenience, publicity leading to economic damage, professional embarrassment and possible damage to professional reputation, do not by themselves justify any restriction on open administration of justice (Asia Television Ltd v Communications Authority [2013] 2 HKLRD 354 at §23).  The contended legislative intent to protect the professional reputation of an accountant pending appeal does not sit well with section 36(1A) (this provides for a public hearing of disciplinary proceedings to be the norm), which was introduced by the Professional Accountants (Amendment) Ordinance 2004 to enhance the transparency of the disciplinary process and to be consistent with Article 10 of the Bill of Rights (this provides that everyone shall be entitled to a fair and public hearing in the determination of his rights and obligations in a suit at law)[10].

34. Mr Stock sought to draw a distinction between the recording of a reprimand or other order in the register, and the publication of disciplinary decisions on the Institute’s website.  A reprimand or other order will only be recorded in the register when the reprimand or other order becomes final upon the expiry of the appeal period or final determination of the appeal.  And the details of the reprimand or other order will not be made available on the Institute’s website under the heading “Registration and Licensing” and the sub-heading “Lists of Members and CPA Practices” or in the relevant parts of the register made available for public inspection at the Institute’s office[11].

35. He submitted that the effect of section 38(2) is to delay enforcing the sanction order merely for administrative convenience.  It is not about publication or the protection of professional reputation of the accountant.

36. He also placed reliance on Dr X v The Education and Accreditation Committee of the Medical Council of Hong Kong [2013] 1 HKLRD 167, in which reference was made to section 25(2) of the Medical Registration Ordinance, Cap 161 (“the MRO”).  This section provides that the Registrar of Medical Practitioners shall not remove the name of the registered medical practitioner from the General Register (“GR”) or the Specialist Register (“SR”) before the expiry of one month after the date of service of the order on the person concerned, or in the case of an appeal to the Court of Appeal, before the appeal is finally determined.  The argument was advanced that as the removal of a doctor’s name from the GR was suspended because of his appeal by virtue of section 25(2), the consideration of the Education and Accreditation Committee (“EAC”) to remove him from the SR and the appeal to the Medical Council from the EAC recommendation were stayed by the operation of section 25(2) until the appeal to the Court of Appeal had been determined.

37. In rejecting the argument, Fok JA (as he then was) had this to say:

“116. It is necessary to consider to whom the s.25(2) stay is directed and what action is thereby stayed. It is clear from s.25(2), which I have set out above, that it is directed to the Registrar and to the action of removing the name of a registered medical practitioner from the GR or SR as the case may be before the expiry of one month after the relevant date, that date being, in the case of an appeal to this Court, after the appeal is finally determined. It is a narrow provision suspending one particular type of order the Council may make under s.21 (removal of a registered medical practitioner’s name from the GR or SR).

117. In short, the section does not stay the proceedings before the Council, nor does it stay the proceedings of the EAC considering, for example, a s.20N recommendation. It is not directed to the EAC or the Council as a whole, but only to the Registrar, and there is no reason to read the prohibition on the Registrar from removing a registered medical practitioner’s name from the GR or SR as precluding the consideration of other matters or the making of recommendations by the EAC or as precluding the Council from considering any other ramifications of its finding of misconduct on the part of the registered medical practitioner. In particular, since the recommendation of the EAC does not result in the removal of a registered medical practitioner’s name from the SR, that is not the action to which s.25(2) is directed.”

38. Mr Stock submitted that the above approach would support a narrow or literal construction of section 38(2).

39. The ambit of section 38(2) of the PAO is much wider than section 25(2) of the MRO. As mentioned earlier, it covers each and every kind of sanction that may be imposed by section 35(1).  Amendments were also made to section 38(2) by the 2004 amendment legislation, at the same time when section 36(1A) was added to the PAO.  This takes away some of the force of the argument that the contended statutory policy of section 38(2) is not compatible with section 36(1A).  Section 38(2) applies only to the period before the final determination of the appeal.  There is no suggestion by Mr Stock that section 38(2) is unconstitutional or should be read down, other than submitting that it should be narrowly construed.

40. Even on a narrow construction, I have difficulty accepting Mr Stock’s submission that the provision is merely for administrative convenience.  It deals not just with the recording of various matters in the register, but also with the enforcement of payment of a penalty or costs or expenses.  And this provision is found in primary, not subsidiary, legislation. I do not think the legislative intent of section 38(2) is solely or primarily to provide for administrative convenience to the Registrar.

41. Insofar as the sanctions imposed on the respondents are concerned, the provision made in section 38(2) is clear: the Registrar is not to record a reprimand or penalty or costs order in the register or to enforce payment of the penalty or costs before the appeal is finally determined.  So none of these sanctions are to take effect in a substantive way pending appeal.  The only way that a reprimand is properly given effect to is by making it public.  The clear legislative intent for this provision must be that pending appeal the reprimand, penalty and costs order are not to be made public, and the penalty and costs order are not to be enforced.  I agree with Mr Mok it would be contrary to the statutory policy and legislative intent if the reprimand, penalty and costs order were to be published to the world at large pending an appeal, notwithstanding there is no recording of these sanctions in the register.

42. Mr Mok also has a point in that the register, according to section 22(1C) of the PAO, may be maintained “(a) in a documentary form; or (b) by recording the information required under subsection (1A) otherwise than in a documentary form, so long as the information is capable of being reproduced in a legible form.”  So the recording in the Institute website may be regarded as recording in the register.

If relief should be granted in this case

43. The general principles applicable to granting an interim injunction pending appeal where the claimant has lost at first instance are as summarised by Floyd LJ in Novartis AG v Hospira UK Ltd [2014] 1 WLR 1264 at §41:

“(1) The court must be satisfied that the appeal has a real prospect of success. (2) If the court is satisfied that there is a real prospect of success on appeal, it will not usually be useful to attempt to form a view as to how much stronger the prospects of appeal are, or to attempt to give weight to that view in assessing the balance of convenience. (3) It does not follow automatically from the fact that an interim injunction has or would have been granted pre-trial that an injunction pending appeal should be granted. The court must assess all the relevant circumstances following judgment, including the period of time before any appeal is likely to be heard and the balance of hardship to each party if an injunction is refused or granted. (4) The grant of an injunction is not limited to the case where its refusal would render an appeal nugatory. Such a case merely represents the extreme end of a spectrum of possible factual situations in which the injustice to one side is balanced against the injustice to the other. (5) As in the case of the stay of a permanent injunction which would otherwise be granted to a successful claimant, the court should endeavour to arrange matters so that the Court of Appeal is best able to do justice between the parties once the appeal has been heard.”

44. In the context of an injunction to stay the publication of the sanction imposed in disciplinary proceedings pending appeal, the respondents referred us to Shackleton v Nova Scotia Board of Examiners in Psychology 1991 CanLII 4426 (NS SC), which adopted the test in an unreported decision of Hallett JA in Purdy v Insurance Agencies Ltd, 30 November 1990.  The test was in two parts and is an “either/or” situation.  Either the appellant must satisfy all three parts of the first test, or the second test. The three parts of the first test are:

“(i) that there is an arguable issue raised on the appeal;

(ii) that if the stay is not granted and the appeal is successful, the appellant will have suffered irreparable harm that it is difficult to, or cannot be compensated for by a damage award …

(iii) that the appellant will suffer greater harm if the stay is not granted than the respondent would suffer if the stay is granted; the so-called balance of convenience.”

45. If the appellant fails to meet the three parts of the first test, the “or” part of the test is that he must “satisfy the Court that there are exceptional circumstances that would make it fit and just that the stay be granted in the case.”

46. The respondents have no dispute with the open justice principle and the proposition that publicity of litigation leading to embarrassment and inconvenience is not by itself a ground to justify restriction on the open justice principle.  They accepted it is a matter of balancing competing interests, between the public interest on the one hand, and on the other hand the statutory policy which gives rise to the right of the individual for protection from the adverse effects of a sanction pending appeal.

47. They advanced these grounds in support of their case for relief:

(1) the statutory policy regarding stay;

(2) real prospects of success in the appeal;

(3) the appeal would be rendered nugatory;

(4) minimal interference with the public’s right to know; and

(5) cross-checking against the Institute’s publication policy.

48. I have dealt with (1). This is a powerful consideration.

49. In respect of (2), the main ground of appeal is that in finding the 1^st complaint proved, the Disciplinary Committee had raised a new case and determined that the respondents “did not adequately apply the necessary professional standard in accordance with HKSA paragraphs 11 and 13, namely to demonstrate that they had adequately evaluated whether they were or were not able to express an unmodified auditors’ opinion in respect of the Company’s measurement of the fair value of the Consideration Shares in the 2010 Financial Statements.” (emphasis supplied) The Committee found the 1^st complaint established on a new case that the respondents had not given effect to HKSA 700.1 in failing to demonstrate the adequacy of their evaluation of the measurement of the Consideration Shares in the audit opinion.

50. In pursuing the complaints against the respondents, the only case advanced by the complainant was that the respondents had failed to express a modified auditors’ opinion regarding the Company’s non-compliance with paragraphs 24 and 27 of the Hong Kong Financial Reporting Standards 3 (“HKFRS 3”) – Business Combinations. Importantly, the Disciplinary Committee did not find there had been a non-compliance with HKFRS 3 and dismissed the 2^nd complaint in that there were sufficient doubts to support the charge the respondents had failed to act diligently in this context.

51. The respondents contended there was breach of natural justice in that HKSA 700.1 was never referred to at any stage of the proceedings and they were not given a chance to respond to the new case.

52. The Registrar did not accept a new case was raised and submitted that on a proper reading of the determination, the conclusions of the Disciplinary Committee were based on HKSA 700.11 and 700.13, which were expressly referred to in the 1^st complaint.

53. It is unnecessary to go further into the merits of the appeal for present purpose.  I am satisfied the complaints of procedural unfairness are reasonably arguable.

54. As for (3), I do not accept damage to the professional reputation and practice of the respondents would be irreparable or that the appeal would be rendered nugatory for that reason.  But I accept there may be some damage to the respondents’ professional reputation resulting from the publication of the Decisions, notwithstanding the accompanying statement on the website that the Decisions are the subject of an appeal.  I take into account that potential harmful publicity may damage the respondents’ professional reputation and diminish their practice and value of their goodwill.

55. As for (4), minimal interference with the public’s right to know, the respondents emphasised that publication of the Decisions would be withheld only pending the determination of the appeal, which is to be heard in September 2017.  Hence, any encroachment on the open justice principle would be temporary, limited and minimal.  The public’s right to know is preserved when the Court of Appeal hears the appeal in open court and publishes its decision on the appeal.  The respondents only seek to prohibit publication in the interim period so people would not jump to any conclusion about their conduct or reputation until the outcome of the appeal is known.  They cited two decisions in New Zealand in which orders were made to suppress publication of the medical practitioner’s name pending appeal from the decisions of the disciplinary tribunal as the appeals would be heard promptly in two months time (A Surgeon v Director of Proceedings, Civ 2007-441-631, 9 August 2007, Heath J; and H v Director of Proceedings [2014] NZHC 1031).

56. Against that is the consideration of two aspects of public interest.  The public has an interest to know, in a timely manner, the outcome of disciplinary proceedings, which have been heard in hearings held in public.  The transparency and accountability of the disciplinary process are relevant considerations.

57. There is also the public interest in the accountancy profession, which “plays a critical role in ensuring the orderly and lawful conduct of commercial activities” and “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.” (Chao Pak Ki Raymond v Hong Kong Society of Accountants [2004] 2 HKC 469 at §16).  In inquiring into the conduct of certified public accountants, firms and corporate practices, the purpose of the disciplinary proceedings is to preserve and maintain the reputation, integrity and status of the accountancy profession and to discourage dishonourable conduct[12].  This is to protect the financial well-being of individuals and businesses and the orderly and lawful conduct of commercial activities by ensuring that certified public accountants are competent to practise.

58. Publication of disciplinary decisions on a timely basis would provide guidance to required standards and the likely consequences of disciplinary breaches and enable members of the public to make an informed decision whether they wish to engage the services of the respondents pending an appeal.  Mr Stock relied on these statements of Laws J in R v Advertising Standards Ltd, ex parte Vernons Organisation Ltd [1992] 1 WLR 1289:

“… there is no doubt that the authority here is a public authority with duties to the public to perform and those duties are to an important degree fulfilled by the procedures which include publication of the case report.” (at 1292B)

“If a private individual will not be restrained from expressing his opinion save on pressing grounds I see no reason why a public body having a duty, other things being equal, to express its opinion should be subject to any less rigid rules. …

I do not know of an instance in which a public body of that kind would fall to be restrained from carrying out what is no more nor less than its ordinary, but important, everyday duties simply upon the grounds that the intended publication contains material which is subject to legal challenge as being vitiated by some error of law. … I do not consider that the effects of that publication are damaging to the applicant in a manner which would be so irreparable, so past recall as to amount to a pressing ground, in the language of Strasbourg, a pressing social need, to restrain this public body from carrying out its function in the ordinary way.” (at 1293F to 1294C)

59. In light of these public interests, I do not propose to attach weight to the fact that the appeal would be heard in eight months’ time from the date of the application.

60. In respect of (5), cross-checking against the Institute’s publication policy, I agree with Mr Stock the fact that unsuccessful prosecutions are not published on the Institute website (this policy is under review) does not take matters any further.  The dictum in Director of Proceedings v I [2004] NZAR 635 at §80 (a useful cross-check in an application for a suppression order of the name of a professional person is to ask would his name have been suppressed after acquittal, and if the answer is “yes” or even “probably”, an interim suppression order should be made) relied on by Mr Mok is taken out of context.  The interim suppression order sought in that case was in the context where a decision had yet to be reached on charges in the disciplinary proceedings and presumption of innocence was a factor considered in the interim application (see §98).

61. To recap, the material factors are the statutory policy, the reasonable prospects of success of the appeal, the potential damage to professional reputation and the public interest considerations.  Notwithstanding the great importance of the public interest considerations, I do not think they can outweigh the statutory policy that I have found.  I am persuaded in this instance relief should be granted to the respondents.  I will make an order that the publication of the Decisions be stayed until the final determination of the respondents’ appeal to the Court of Appeal or until further order.

62. There is no dispute that costs of this application should follow the event.  So there will be an order that the Registrar is to pay the costs of the respondents in this application, with a certificate for two counsel.  Costs will be assessed summarily upon the provision of an updated statement of costs by the respondents within 7 days of this judgment.