MANDY TAM HEUNG MAN v. THE HONG KONG INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS

HCAL 9/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 9 OF 2007

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J U D G M E N T

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Introduction:

1.  In September 2004, Ms Tam, a certified public accountant, was elected in a contested election to be the legislative councillor representing the accountancy functional constituency in the Legislative Council, (LegCo), of the Hong Kong Special Administrative Region.

2.  After her election Ms Tam followed the practice of earlier LegCo representatives for the constituency in preparing an occasional newsletter.  This newsletter was distributed to her constituents through the membership database of the Hong Kong Institute of Certified Public Accountants, (the Institute).

3.  On 19 September 2006, the Council of the Institute resolved that the Institute should stop distributing Ms Tam’s newsletter to its members.  On 9 October 2006, the Institute issued a letter to all its members notifying them of the decision.  The letter set out details enabling members to contact Ms Tam directly if they wished to receive her newsletter.

4.  At a Council meeting on 24 October 2006, the Institute affirmed its earlier decision.  The decision was further reaffirmed on 13 December 2006, and again on 23 January 2007.

5.  Subsequently, Ms Tam was granted leave to bring judicial review proceedings challenging the decision of the Institute to cease distribution of her newsletters and other materials to its members.

The application for judicial review:

6.  Ms Tam now seeks judicial review of the decision of the Council, first made on 19 September 2006, and subsequently reaffirmed on 24 October 2006, 15 December 2006, and 23 January 2007.

7.  Her case is that the decision to refuse to distribute the newsletter prevents her, as the Legislative Councillor representing the accountancy functional constituency, from properly communicating with the members of her constituency.  Ms Tam says that the decision is in breach of public law principles.

8.  Mr Dykes, for Ms Tam, advances five grounds upon which he says that the decision of the Council was unlawful.  They are:

(a)	in reaching its decision the Council took into account irrelevant and extraneous considerations;
(b)	in reaching its decision the Council failed to take relevant considerations into account;
(c)	in reaching its decision the Council violated principles of equality and consistency;
(d)	in reaching its decision the Council took an erroneous view of the Personal Data (Protection) Ordinance, (PDPO);
(e)	the decision of the Council was irrational.

9.  The case for the Institute, advanced by Mr Pannick, is twofold.  First, Mr Pannick says that Ms Tam mischaracterises the content of the decisions taken by the Institute.  The argument is that the decision was not a final decision to refuse to distribute newsletters.  

10.  Second, it is argued that the Institute has not breached any principle of public law.

The Institute:

11.  The Institute is a statutory body established under s 3 Professional Accountants Ordinance, Cap 50, (PAO).  It comprises all those persons who are registered as certified public accountants under s 22 PAO.

12.  The objects of the Institute are set out in s 7 PAO, and include:

“	(a)	to maintain a register of certified public accountants, firms of certified public accountants (practising) and corporate practices;
	(b)	to regulate the practice of the accountancy profession;
		….
	(g)	to represent the views of the profession and to preserve and maintain its reputation, integrity and status;
	(h)	to discourage dishonourable conduct and practices by certified public accountants, and for this purpose hold inquiries into the conduct of certified public accountants;
		….
	(j)	to take such action as the Institute considers necessary in any matter affecting the professional interests of the accountancy profession;
	(k)	to do all such other things as are incidental and conducive to the attainment of the above objects.”

13.  The management and control of the Institute is vested in the Council, the membership of which is governed by s 10 PAO. 

14.  The Council comprises 20 members, of whom 14 are certified public accountants elected by members.  If the immediate past President of the Institute is not elected as a member of the Council, he becomes an additional member, ex officio, (in which case the Council will have 21 members).  The other 6 members comprise the Financial Secretary, (or a person appointed by him as his representative), the Director of the Accounting Services, (or a person appointed by him as his representative), and 4 lay persons appointed by the Chief Executive.

15.  Section 18(1) PAO, sets out the powers of the Council.  These  include the following:

“	(a)	do anything necessary for the better carrying out of the objects of the Institute;
		…..
	(n)	publish periodicals, booklets or other written material, and produce or sponsor the production of documentary films or other audio-visual material, and distribute the same by sale, loan, hire or otherwise, with or without charge, as the Council thinks fit.”

16.  By s 22 PAO, the Council is required to keep a register of certified public accountants.  Section 22 provides:

“	(1)	The Registrar shall keep a register for the purposes of this Ordinance and shall be responsible for the custody of thereof.
	(2)	Upon the making of an order for the registration of an applicant under section 26(1), the Registrar shall enter in the register the following particulars of the person to be registered -
		(a)	his name;
		(b)	his residential address and any business address or, if he holds a practising certificate, his residential address and his registered office under section 31;”

17.  Access to the register is regulated by s 23(3) PAO.  It is not generally available, but is restricted to a particular purpose.  Access is limited in the following manner:

“

For the purposes of enabling any member of the public to ascertain whether he is dealing with a certified public accountant, a certified public accountant (practising), a firm of certified public accountants (practising) or a corporate practice and to ascertain the particulars of registration of such person, the register or (where the register is maintained otherwise than in a documentary form) a reproduction of the information or the relevant part of it in a legible form shall at all reasonable times be made available for public inspection without charge.”

The accountancy functional constituency:

18.  The accountancy functional constituency is established by ss 20(1)(g) and 20G Legislative Council Ordinance, Cap 542, (LCO).  The constituency is composed of certified public accountants, registered under the PAO, who also meet the general eligibility requirements in ss 25 and 27-31, LCO.

19.  Section 32 LCO, requires the Electoral Registration Officer to compile and publish annually a register of persons eligible and registered to vote in each functional constituency.  The most recent accountancy functional constituency register was published on 25 July 2006, and lists 20,765 registered voters.

20.  The evidence is that the Institute presently comprises 25,934 members.  Consequently, nearly 20% of the members of the Institute are not registered to vote in the accountancy functional constituency. 

21.  Those who are not registered to vote comprise those entitled to register as electors, but who have elected not to register, and those who are not eligible for registration.  This latter group comprises persons who are registered certified public accountants, but who do not meet other criteria required by the LCO, such as permanent residency in Hong Kong.

22.  The Institute does not maintain a separate record of which of its members are registered voters.

23.  Section 43 LCO, makes particular provision for communication by a candidate for a functional constituency with registered electors, at the time of election, in the following terms:

“	(2)	Two letters, addressed to each person who is an elector for the functional constituency for which a candidate is validly nominated, may be sent free of postage by or on behalf of the candidate.
		….
	(4)	The letter must relate to the election concerned and must comply with all requirements and limitations (if any) prescribed by the regulations and by regulations in force under the Electoral Affairs Commission Ordinance.
	(5)	The cost to the Postmaster General of enabling candidates or a list of candidates to exercise their entitlements under the section is a charge on, and is to be met from, the general revenue.”

The decision complained of:

24.  The Council decided to cease regular distribution of Ms Tam’s newsletters on 19 September 2006.  The minutes of the Council meeting record as follows:

“	Council’s attention was drawn to a number of articles appearing in Ms Tam’s column in two Chinese newspapers in Hong Kong in which the Institute was criticised openly by Ms Tam on various matters.
	The meeting was gravely concerned with the allegations made by Ms Tam in the newspaper articles and was of the view that these allegations would have irretrievably broken the relationship between the Institute and Ms Tam.
	The Council considered that while the Institute would respect Ms Tam’s right to voice her own political and personal opinions, it is necessary for the Institute, being a statutory and regulatory body for the accounting profession in Hong Kong, to clearly segregate itself from Ms Tam’s own viewpoints.
	After a lengthy discussion, the Council resolved that the Institute should stop distributing Ms Tam’s newsletter to members of the Institute in order to segregate the role and the views of the Institute from those of Ms Tam.  It was also agreed that this decision of the Council should be conveyed to all Institute members and a letter should be issued to the relevant newspapers to refute the unsubstantiated and inaccurate assertions in Ms Tam’s newspaper articles which would be damaging or potentially harmful to the Institute and by association, its membership.”

25.  On 9 October 2006, the Council informed its members of the decision, by circular letter specifically for the purpose, in the following terms:

“	After much thought and deliberations over the course of two years, the Council has come to the decision to cease distributing Ms Tam’s newsletters and correspondence to members.  Ms Tam has adopted an increasingly political stance on many issues, and the Council believes it is necessary for the Institute, being a statutory and regulatory body for the accounting profession, to clearly segregate itself from Ms Tam’s own political and personal viewpoints.
	This decision, which the Council has asked me to relay to you, was made with disappointment, and comes after the LegCo representative’s on-going public attacks and criticisms against the Institute in her newspaper columns, letters to members and the media.  While the Council respects Ms Tam’s right to voice her opinions, it is disappointed with the lack of consideration or prior consultation with the Institute as to the factual basis of her many accusations.
	….
	If you would like to receive Ms Tam’s newsletter and other communications in the future, please contact Ms Tam or her staff to have your details included in her database and distribution list.  Her contact details are: website:  www.mandytam.com, e-mail: contactus@mandytam.com, or call 2810 5567 ”

These contact details were repeated by the Institute in an “e-circular” sent to members on 11 November 2006.

26.  Ms Tam requested the Council to reconsider its decision.  In a letter to the Council on 20 October 2006, she said:

“

The important thing is that my communication link as Legislative Council representative of the membership is restored and the public dispute between myself and the Council ceases.  To this end, I am prepared to cover the full cost of mailing my physical newsletters separately to members.  From time to time I would also have ad hoc communications with members by separate e-mails; presumably you would handle those too at no additional charge.”

27.  On 24 October 2006, the decision of the Council was reaffirmed.  Ms Tam was advised by letter the next day. 

28.  Now the Council based its decision on the Personal Data (Privacy) Ordinance, (PDPO).  The letter advised Ms Tam of the reasons for the decision in the following terms:

“	In keeping with the principles of the (PDPO), the Institute will as a matter of policy only use the personal data of members for the purposes for which those data were collected.  The Institute would require the written permission of members before using their data for disseminating materials for a purpose unrelated to the Institute’s business under the (PAO).
	The Council felt that the best arrangement for the Institute would be to advertise, through its e-circular and magazine, your contact details and urge members to get in touch with you directly.  The Institute will do this monthly until the end of December.”

29.  On 22 November 2006, Ms Tam wrote an extensive letter to the President of the Institute requesting the Council to resume distribution of the newsletter.  In that letter Ms Tam answered, as she saw it, the issues relating to the PDPO, and commented on her view of the lawful function and activity of the Institute.

30.  Again the Council reconsidered the matter, and on 15 December 2006, Ms Tam was informed that the Council had “reiterated” its decision. 

31.  Ms Tam was now advised that the Institute had taken legal advice.  She was informed as follows:

“	Data protection principles
	The Institute will, as a matter of policy, only use the personal data of its members for the purposes for which the data were collected.  The Institute will not, as a matter of policy, use the personal data of members to distribute newsletters or other materials where the Institute cannot satisfy itself that such use of members’ personal data conforms to data protection principles.
	Unlike your predecessors of the accountancy functional constituency, it is your position that the Institute should distribute your newsletters and other materials irrespective of their contents.  If the Institute were to accept this position of yours, it will not, in the absence of consent of its members to such distribution, be in a position to satisfy itself that the use of the members’ personal data for such distribution will, conform to data protection principles.
	No obligation to distribute your newsletter
	Apart from the data protection principles, the Institute is under no obligation, legal or otherwise, to distribute newsletters or other materials for the LegCo member of the accountancy functional constituency.  The decision as to whether to do so rests with the governing body of the Institute, namely, the Council.
	Due to the many difficulties which the Council has had with you over the posting of your newsletters and materials, the Council does not consider that it can continue to work with you in so far as distribution of your newsletters and materials are concerned.  The Council has made a decision to cease distribution of your newsletters and materials on your behalf and you and members of the Institute have been so informed.
	Right of members to decide whether to receive your newsletters
	The Institute respects the right of its members to decide whether they would wish to receive your newsletters and materials.
	As a gesture of goodwill, the Institute has advertised, through its e-circulars and magazine, your contact details and urged members to get in touch with you directly, should they wish to receive your newsletters and materials.
	In addition, the Institute, as a membership service, has asked members who do not wish to provide their personal data to you but who wish to receive your newsletters and materials, to provide the Institute with their written consent so that you may send your newsletters and materials to the Institute’s mailing agent and request the mailing agent to distribute your newsletter and materials, at your own expense, to those members on your behalf.  So far, about 250 members have written to us saying they wish to make use of the service and you have been so informed.”

32.  On 16 January 2007, in a letter to the President of the Institute, Ms Tam again asked the Council to reconsider its decision.  She informed the President that she was considering applying to the Court to resolve the dispute.

33.  On 20 January 2007, Ms Tam wrote again to the President of the Institute reminding him that she had given instructions to her lawyers to prepare an application for judicial review.  She sought a reconsideration of the decision before any application for judicial review was made.

34.  In that letter Ms Tam imposed a deadline for the Council to make its decision by 12 noon on 23 January 2007.  As the Council meeting was to be held on the afternoon of 23 January 2007, Ms Tam extended the deadline to 6 p.m. on that day.

35.  The Council met on the afternoon of 23 January 2007, and reaffirmed its decision.  Ms Tam was informed of the decision.

36.  On 24 January 2007, Ms Tam made a public statement, by way of press release, that she would challenge the decision of the Institute to refuse to distribute her newsletters by way of judicial review. 

37.  The application for leave was filed on that day, and leave was granted on 25 January 2007.

The scope of the decision:

38.  Mr Pannick sought to persuade me that Ms Tam was incorrect in suggesting that the decision of the Institute was a decision:

“	to cease all distribution of (Ms Tam’s) newsletters and other materials to its members.”

39.  To support this submission Mr Pannick relied upon two matters. 

40.  First, he says that the Institute has advised its members how to contact Ms Tam, and that it has established a service by which a member may receive Ms Tam’s materials via the Institute.  Second, he says that the Institute is ready and willing to consider whether particular information from Ms Tam is such that the professional interests of members require the information to be disseminated to the membership.  In such circumstances the Institute would disseminate the information.

41.  The decision of the Institute was clear and unequivocal, and on its terms did not admit to any exceptions.  It was a decision to cease distribution of the newsletters.

42.  It is right that the Institute has advised members who wish to receive Ms Tam’s newsletters to contact her, and has supplied her contact details.  Further, the institute maintains a link to Ms Tam’s website on its own website.  The evidence is that to date, approximately 313 of the 25,000 or so members have subscribed for this service.

43.  But these facts do not detract from the clear and unequivocal terms of the decision not to distribute Ms Tam’s materials in future.

44.  It is correct too, that the affidavit of the Chief Executive of the Institute asserts that if particular information from Ms Tam was to come to the attention of the Institute, and the Institute was of the view that the professional interests of the accounting profession required such information to be disseminated to the Institute membership, the Institute would do so.

45.  That is a subsequent, qualified, willingness to distribute matters received from Ms Tam.  Its reserves to the Institute the right to determine whether, in its view, (not Ms Tam’s view), the material is in the interests of members.  When regard is had to the role of the Legislative Councillor for a functional constituency, a matter that will be discussed below, it may be seen that the qualification imposed by the Institute effectively denies Ms Tam the ability to communicate with her constituents through the Institute, other than in a very limited area.

46.  Neither of these matters provide an answer to the Institute, but both are factors which are relevant in making the decision whether or not to distribute the newsletters.

Other relevant background:

47.  In order that the decision of the Council may be seen in its proper context, it is necessary to review the facts relating to certain other relevant matters.

Distribution of LegCo member newsletters, prior to Ms Tam:

48.  The Institute accepts that prior to the election of Ms Tam it “cooperated”, (to use the Chief Executive’s expression), with the LegCo member for the accountancy functional constituency to distribute a newsletter to its membership.  The letter was distributed by the Institute, on behalf of the LegCo member, using the database of membership, created by the register held by the Institute.  The distribution service had been undertaken by the Institute for the LegCo member for the accountancy functional constituency for nearly 20 years.

49.  The Institute’s evidence is that the distribution of the newsletter was allowed as a courtesy on the understanding that the person elected for the constituency must bear any additional costs of distribution.

The content of other LegCo member’s newsletters:

50.  The previous accountancy constituency LegCo member, Mr Eric Li, had circulated newsletters to members of the Institute, through the Institute, using the Institute’s database of members.  Mr Li had included political comment, unrelated to issues directly involving the professional lives of chartered public accountants, in those newsletters.

51.  Articles in June and July 2002, were supportive of the Government’s proposal to impose a pay cut on civil servants.  In December 2002, Mr Li wrote an article in favour of a  controversial levy to be imposed upon the employers of foreign domestic helpers.  In June 2003 there was an article concerning controversial national security provisions.  In March 2004 there was an article reviewing aspects of proposed political reform.

52.  In July 2004, through the medium of his newsletter, circulated to members through the Institute, Mr Li had cooperated with the University of Hong Kong, Public Opinion Program, to undertake a questionnaire survey on professional accountants’ views on constitutional reform.

53.  There is no evidence at all that the Institute took any exception to any of these matters on the grounds either, that they involved the expression of overt political views, or that the matters did not relate to the professional interests of chartered public accountants, or that the newsletters may indicate that the Institute had taken a particular stand on a matter, or that they contravened any of the data protection principles of the PDPO.

The constitutional reform proposals:

54.  Prior to December 2005, active debate was taking place in Hong Kong concerning proposals put to LegCo by the Government in relation to constitutional reform.  Matters of particular interest to the public included, in particular, the means by which the Chief Executive was to be elected, the composition of the Legislative Council, and the means by which LegCo members were to be elected.

55.  Ms Tam’s position on the matter was set out in a circular letter she distributed to her constituents, without the assistance of the Institute, they having declined to assist, in early December 2005.

56.  Ms Tam had previously sought the agreement of the Institute to conduct a survey of members’ views on political development, but that request had been declined, upon the ground that the Council did not wish to involve the Institute in political matters.

57.  On 4 December 2005, Ms Tam expressed her views in a radio programme on Radio 3, the primary English language radio station in Hong Kong.  She did so in the programme known as “Letter to Hong Kong”, a programme in which politicians or other prominent citizens are given the opportunity to express their personal views on issues of the day.

58.  In the course of the broadcast Ms Tam was critical of the Institute for expressing the intention of itself conducting a survey on members views on the proposed political development.  The basis of her criticism was that the Institute had rejected a request by Ms Tam to conduct a survey on the issue through her newsletter.

59.  On 9 December 2005, the Institute, by circular, sought from its members by way of a simple survey their views on the constitutional reform package.  The circular stated that the legislative proposals in the reform package:

“	…were of great public interest to our members and the Hong Kong SAR.”

The intention of the survey was, the circular said:

“	…in order to facilitate (and facilitate only) the voting decision of the Hon Mandy Tam, Legislators Council representative.”

60.  Ms Tam wrote to the Chief Executive of the Institute complaining that the December issue of her newsletter, in which she sought members views on constitutional development, had not been circulated to members.  Ms Tam complained at the same time that the Institute’s newsletter had sought members views on the issue.

61.  The Institute conducted a survey of its members on the question of constitutional reform.  The President of the Institute wrote to Ms Tam urging her to vote in accordance with the results of the Institute’s survey.  Ms Tam did not vote in accordance with the survey. 

62.  In December 2005 and January 2006, the President of the Institute wrote a series of articles that were published in a column entitled “Professional World”, in Ming Pao, a leading Chinese newspaper published in Hong Kong.  The articles were critical of Ms Tam’s decision to vote against the constitutional reform package.

63.  In her affidavit, the Chief Executive of the Institute says that:

“

The Council decided not to distribute this newsletter, both by reason of the fact (that) the Institute did not want to distribute materials containing overt political messages which might give the impression the Institute had taken a particular political position on the matter and because the Institute would incur additional distribution costs.”

The disclaimer:

64.  In January 2006, the Institute resumed distribution of Ms Tam’s newsletter.  It did so after a number of discussions with Ms Tam in the course of which the Institute decided that a disclaimer must be affixed to all of Ms Tam’s future newsletters.  The disclaimer required is in the following terms:

“

The Hong Kong Institute of CPAs has agreed to post this newsletter for the LegCo representative, Mandy Tam, to facilitate her communications with members.  The Institute has not given your details to Ms Tam and maintains the confidentiality of members’ information.  The views expressed in the newsletter those of Ms Tam and not those of the Institute.  Please inform us if you do not want to receive future issues.”

The GST proposals:

65.  In August 2006, an issue prominent in public discussion in Hong Kong was a Government proposal to introduce a Goods and Service Tax, (GST). 

66.  This was an issue on which certified public accountants were closely involved.  It was an issue on which the Council of the Institute had taken a position.  The Institute was, in principle, supportive of the Government’s intention to introduce GST, primarily because it was seen by the Institute as being an appropriate means to broaden the tax base in Hong Kong.

67.  Ms Tam wished to conduct a survey within the accountancy profession to gauge the response of accountants to GST.  The survey was to be undertaken with the assistance of a group known as the East Asia Work Based Learning Centre of Middlesex University.  With that background it may reasonably be expected to be a professionally prepared survey.

68.  The Institute initially refused to distribute the survey.  The Chief Executive says:

“	... that there was a concern that, if the survey was distributed to members as part of the Institute’s regular mailing, it might give the erroneous impression that the survey was endorsed by the Institute.”

After some discussion, it was agreed that the survey would be distributed as a stand-alone mailing, separate from the Institute’s regular mailing, and that Ms Tam must pay the cost of the mailing.

69.  At about the same time as Ms Tam’s survey was circulated, the President of the Institute made the following statement in the Institute’s monthly newsletter:

“	As most members know, the Institute has, for many years, been an advocate of a broader tax base, and the GST as a way to achieve this.  In fact, the Government’s consultation paper contains many of the suggestions of the Institute relating to the design of the GST system.
	It seems to me that unless and until the various issues associated with GST have been identified and well thought through, and people are given the chance to debate them thoroughly, any survey purporting to reflect the response of the membership towards this important issue is not meaningful.”

70.  On 17 September 2006, Ms Tam released the results of her survey showing that about 60% of those who responded did not support the introduction of GST.  It is a legitimate criticism of the survey that the level of response from those to whom it was sent was very low.

71.  Ms Tam was openly criticised by Council members over her GST survey.

72.  Mr Edward Chow, a former president of the Institute, and a Council member, was quoted in the Oriental Daily News describing Ms Tam’s survey as:

“	a shame to the accountancy sector.”

The report records Mr Chow as declaring that he would suggest that the Institute itself should conduct a survey on GST.  The report records a Vice-President of the Institute, Mr Mark Fong, as agreeing to this suggestion.  The report says that the President, Mr Paul Chan, took a more reserved position, suggesting that a survey should be carried out in the future, following discussion by members of the Institute, in order that they may have a clear understanding of GST. 

73.  The evidence from the Institute does not disavow these assertions.

74.  The dispute between Ms Tam and the Institute became the subject of comment in newspaper articles.

75.  Ms Tam had published the results of her survey on 17 September 2006.  The first of the newspaper articles highlighting the differences between Ms Tam and the Institute appeared the next day, 18 September 2006.  The report of the comments by Mr Chow and Mr Fong was published in 19 September 2006.

76.  On 19 September 2006, the Council met and resolved to stop distributing Ms Tam’s newsletter.

GST as a matter of public, not particular interest:

77.  The Council takes the view that it should not be obliged to distribute her newsletters if Ms Tam expresses views on matters which do not affect the professional interests of the accountancy profession.  Yet at the same time the Institute took a stand that was supportive of the GST proposals

78.  While it is right that the imposition of a GST will involve chartered public accountants in the sense that a GST will have an impact on the preparation and filing of matters such as annual accounts and taxation returns, the interest of chartered public accountants in the philosophical, or policy concept of a GST is neither greater nor less than that of the general population.

79.  Issues such as the method by which a GST is to be calculated, the records that businessmen must be required to keep in relation to GST, the method by which payment is to be made, and matters of that like can certainly be argued to constitute matters which affect the professional interests of the accountancy profession.  These are all matters which will directly involve a chartered public accountant, should a GST be imposed.  This may be seen from the emphasis placed by the President of the Institute in his statement in the newsletter to members on the adoption by the Government of suggestions from the Institute as to the design of the GST system.

80.  But, chartered public accountants are simply that: they are accountants, they are not economists nor are they politicians. While chartered public accountants will inevitably be involved in the mechanics of the collection of any form of taxation that might be imposed by the Government, their interest in the particular form of taxation to be imposed is no greater than that of any other member of the public.

81.  In my view, a chartered public accountant is in no better position than any general member of the public to comment on the appropriateness of GST as a method to broaden the tax base.  A chartered public accountant is, however, an appropriate person to comment on the design or mechanics of the GST system.  In that area a chartered public accountant has a special expertise.

82.  The views expressed on GST in Ms Tam’s newsletter were primarily views related to the philosophical or political question as to whether a GST ought to be introduced.

The power of the Institute, and its discretion:

83.  There can be no doubt that the Institute has the power, and a broad discretion, under s 18(1)(a) and (n) PAO, whether or not to distribute material to its members.

84.  The Council of the Institute, having a discretion whether or not to publish materials, must also have the discretion to refuse, at any time, to distribute materials. 

85.  The affidavit of the Chief Executive of the Institute asserted that the Institute:

“	retained an overriding discretion to refuse to distribute materials”,

when making its decision that it would distribute newsletters for LegCo members representing the functional constituency.  That discretion, I am satisfied, arose not from a specific decision of the Institute made at the time it decided to distribute newsletters, as the affidavit implied, but simply because that discretion was part of the general discretion whether or not to publish materials.

86.  There is no right of appeal to the Court against a decision of the Institute as to how it will exercise its discretionary powers.  Mr Pannick correctly reminds me that the Court must be slow to intervene in the exercise of a discretion.  I accept that there are a broad range of interests represented on the Council, one third of which are statutory appointees, and not elected by members of the Institute.

87.  It is not open to me to substitute my own discretion for that of the Council, but only to examine the procedure by which the Council reached its decision.  I may however examine the decision for rationality, applying the public law test of unreasonableness.  If irrelevant matters have been taken into account, if irrelevant matters have been taken into account, or relevant matters disregarded, or inappropriate weight accorded to relevant matters, the decision may be found to be unreasonable.

Freedom of speech:

88.  Mr Dykes puts Ms Tam’s case, in part, upon the basis that the denial of the distribution of the newsletters by the Institute impinges upon Ms Tam’s right to freedom of speech.

89.  Freedom of speech is a fundamental right.  It is protected in Hong Kong by Article 16 of the Hong Kong Bill of Rights, entitled “Freedom of opinion and expression”.  The Article provides:

“	(1)	Everyone shall have the right to hold opinions without interference.
	(2)	Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing in print, in the form of art, or through any other media of his choice.”

90.   Mr Dykes placed particular reliance upon principles of freedom of speech and debate in LegCo.  He reminds me of the special protection of freedom of speech and debate in LegCo contained in s 3 Legislative Council (Powers and Privileges) Ordinance, Cap 385, and Article 77 of the Basic Law.

91.  The Court of Final Appeal has recognized the importance of the free exchange of ideas and information.  In Cheng & Anor v Tse Wai Chun (2000) 3 HKCFAR 339 at 345D, Li CJ said:

“

In a society which greatly values the freedom of speech and safeguards it by a constitutional guarantee, it is right that the court, when considering and developing the common law, should not adopt a narrow approach to the defence of fair comment.  See Eastern Express Publisher Ltd & Anor v Mo Man Ching & Anor (1999) 2 HKCFR 264 at 278.  The courts should adopt a generous approach so that the right of fair comment on matters of public interest is maintained in its full vigour.”

92.  In the same decision, Lord Nicholls NPJ had this to say, at p 352F:

“	The public interest in freedom to make comments within these limits is of particular importance in the social and political fields. Professor Fleming stated the matter thus in his invaluable book on The Law of Torts, 9th edition, p 648:
	"	.. untrammelled discussion of public affairs and of those participating in them is a basic safeguard against irresponsible political power. The unfettered preservation of the right of fair comment is, therefore, one of the foundations supporting our standards of personal liberty."

And, at p 353B:

“

Liberty to make such comments, genuinely held, on matters of public interest lies at the heart of the defence of fair comment. That is the very object for which the defence exists. Commentators, of all shades of opinion, are entitled to 'have their own agenda'. Politicians, social reformers, busybodies, those with political or other ambitions and those with none, all can grind their axes. The defence of fair comment envisages that everyone is at liberty to conduct social and political campaigns by expressing his own views, subject always, and I repeat the refrain, to the objective safeguards which mark the limits of the defence.”

93.  The case concerned a conversational dialogue between two prominent broadcasters, on a radio program, on a matter of public interest. The precise issue before the court was the extent of the defence of fair comment in a defamation action.

94.  I am satisfied these expressions on the importance of the freedom of speech are of such general application that it is proper for me to take them into account when considering the issues raised by this case.  They provide an answer to Mr Pannick’s submission that in determining this matter I should take a narrow view of the issues.

The role of a Legislative Councillor in a functional constituency:

95.  The functional constituencies of the Legislative Council are a unique part of the political structure in Hong Kong.  Unlike  geographical constituencies, known worldwide, the electors of a functional constituency are confined to a defined group, sharing a common qualification other than mere residence in a particular place.

96.  But they are nonetheless democratic institutions as they provide the opportunity for the group of constituents to choose their own legislative representative.  The constituents of the functional constituency choose their representative by way of an election, governed by rules designed to allow an elector to cast his vote in a fair process, identical to the process applied in a geographical constituency.

97.  As the elected representative for a functional constituency Ms Tam has a number of constitutional responsibilities, primarily set out in Article 73 of the Basic Law.  These constitutional responsibilities plainly extend beyond the scope of matters affecting the professional interests of the accountancy profession.

98.  I accept Mr Dykes’ submission that Ms Tam is a trustee for her constituents.  Mr Dykes put it this way:

“	She serves all her constituents, including those who disagree with her views, as best she can, having regard to what she perceives is in their best interests.  She also serves the wider community because her decisions will affect (that wider community).”

I agree entirely.

99.  It is clear that the elected representative is not the delegate or the “mouthpiece” of either the Council of the Institute, or the Institute itself.  The legislative councillor for the constituency is the elected representative of those persons on the register of certified public accountants, who qualify to vote in the functional constituency, as established by the LCO, and have become registered as electors.

100.  I accept Mr Dykes’ submission that the regulatory body of the profession, the Council of the Institute, being neither wholly representative, nor wholly elected, cannot stand between the elected LegCo representative and those comprising the functional constituency.  The Council is perfectly entitled to voice its disagreement with the LegCo representative, but it may not stop that person doing a legislator’s job.

101.  The importance of freedom of speech to the role of a legislative councillor has been emphasised by the High Court of Australia in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.  The single judgment of the Court, under a section entitled “Freedom of communication”, made a number of statements to which Mr Dykes referred me. In particular, I have regard to the following:

“	Freedom of communication on matters of Government and politics is an indispensable incident of that system of representative Government which the Constitution creates by directing that the members of the House of Representatives and the Senate shall be directly chosen by the people of the Commonwealth and the States, respectively.” (p559)
“	Communications concerning political or Government matters between the electors and the elected representatives, between the electors and the candidates for election and between the electors themselves were central to the system of representative Government, as it was understood at federation.” (p 560)
“	That being so, ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between people concerning political or Government matters which enables the people to exercise a free and informed choice as electors.  These sections do not confer personal rights on individuals.  Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power.” (p 560)
“	If the freedom is to effectively serve the purpose of ss 7 and 24 and related sections, it cannot be confined to the election period.  Most of the matters necessary to enable the people to make an informed choice will occur during the period between the holding of one, and the calling of the next, election.  If the freedom to receive and disseminate information were confined to election periods, the electors would be deprived of the greater part of the information necessary to make an effective choice at the election.” (p 561)

102.  Mr Pannick referred me also to the following passage at p 561-2:

“

However, the freedom of communication which the Constitution protects is not absolute.  It is limited to what is necessary for the effective operation of that system of representative and responsible Government provided for by the Constitution.  The freedom of communication required by ss 7 and 24 and reinforced by the sections concerning responsible Government and the amendment of the Constitution operates as a restriction on legislative power.  However the freedom will not invalidate a law enacted to satisfy some legitimate end if the law satisfies two conditions.  The first condition is that the object of the law is compatible with the maintenance of the constitutionally prescribed system of representative and responsible Government or the procedure for submitting a proposed amendment to the Constitution to the informed decision of the people which the Constitution prescribes.  The second is that the law is reasonably appropriate and adapted to achieving that legitimate object or end.”

103.  Although directed immediately to the Australian federal system of Government, I have no doubt at all that the principles reflected in these statements apply equally to the system of representative Government in Hong Kong.  It is proper that I should have regard to these principles in considering the steps at issue in this case. 

104.  They serve particularly to demonstrate the importance of the need for a proper exchange of communication between members of a constituency and their elected representative.

The functional constituencies:

105.  In the case of a geographical constituency, the elected member has little difficulty in circulating his views to electors.  He need merely distribute a newsletter to every household within his geographical constituency.  By so doing he is likely to reach, effectively, virtually every eligible elector.

106.  But a functional constituency representative is in a quite different position. 

107.  An examination of the relevant provisions of the LCO, establishing the functional constituencies, (ss 20 and 20A-ZB), demonstrates that in respect of each of the functional constituencies, those entitled to be registered as an elector must, as a pre-requisite, hold some form of qualification, or be a member of some particular group, that may be identified by way of a register or some similar record of qualifications.  Inevitably, that register or record is held by someone other than the Electoral Registration Officer.

108.  Consequently, if a LegCo representative for a functional constituency wishes to circulate his views to electors, he can only do so, (other than generally in press), if he has some form of access to the register or record in which those who hold the pre-requisite qualifications for registration as elector will be recorded.

109.  In para 95 above, I described the functional constituencies as being unique.  They are unique in two respects.  They are unique because they are peculiar to Hong Kong.  I am unaware of, and counsel did not suggest, any other country in which seats in its legislative Council, whatever form that may take, are elected in this manner.

110.  The functional constituencies are unique also in their dependence upon membership of some other Institute, body or organisation, which, quite separately from Government electoral officials, keeps a register or roll of membership.

111.  The consequence of this latter factor is that any consideration of the functional constituencies requires the relevant provisions of the LCO to be read together with whatever other legislation or arrangement establishes the register or roll of membership, from which electors for the particular functional constituencies may be drawn.  In the present case it is accordingly necessary to read the LCO and PAO together.  To this extent they are interlinked, although not specifically or directly, in either piece of legislation.

No duty on the Institute to assist a Legislative Councillor:

112.  Mr Pannick draws my attention to the fact that no statutory duty is imposed upon the holder of the register or records of membership which provides the basis for the determination of eligibility for a functional constituency, to facilitate communication between a legislative councillor and those eligible to vote.  That is the case whether it be under the PAO, or any other form of register or record upon which a functional constituency is based.

113.  It is correct that it is not the function of the Court in these proceedings to remedy any failure on the part of the legislature to include in either the PAO, or the LCO, provisions which Ms Tam might think appropriate, to enable her to communicate with her electors.

114.  Ms Tam cannot, in these proceedings, claim a right to have her newsletter distributed by the Institute using its register of members.  What she is entitled to, however, is to demand that any decision made by the Institute to use, or not to use, its register for that purpose, is a decision made in accordance with law.  As a statutory body, any decision the Institute makes will be amenable to judicial review.

Limitations on the use of the electoral register:

115.  To date, the legislature has enabled only very limited use of the electoral register to distribute information to electors.  It does so by  permitting, in s 41 LCO, two letters to be addressed by a candidate for an election, at the time of an election, to each elector in either a geographical or a functional constituency. 

116.  I am satisfied however that this section should not be read as a statement by the legislature on the scope to which the electoral register may be used, but rather as making provision for letters to be addressed by candidates in an election, to electors, with the cost to be borne by Government.

117.  The importance of the provision is its revenue aspect, rather than as a limitation on communication with electors.  The provision is designed to provide for payment of the posting of letters.  It is merely an incidental consequence that it may have the effect of limiting a legislative councillors’ access to the electoral register.

118.  Regulations 41 of the extraordinarily named “Electoral Affairs Commission (Registration) (Electors for Legislative Council Functional Constituencies) (Voters for Election Committee Subsectors) (Members of Election Committee) Regulation”, (sic), Cap 541 Sub Leg B, (the Electoral Regulations) restricts general access to the electoral register to purposes related to an election and only to such persons as the Electoral Registration Officer considers appropriate.

119.  Regulation 42 of the Electoral Regulations creates offences in relation to unauthorised use of the electoral register.  Thus, neither Ms Tam, nor any other functional constituency member, nor even a geographical constituency member may use the electoral register as a means of gaining access to information in order to communicate with electors.

120.  Mr Dykes correctly submitted that whether or not the effect of these regulations, to create a ban on access to the electoral register outside election times, was lawful, was not an issue in these proceedings.

121.  However, Mr Pannick must be right in his submission that these restrictions on the use of the electoral register are a factor which I must take into account in determining the lawfulness of the course followed by the Council of the Institute.  Together with that must go the restrictions upon general access to the register of certified public accountants, (see para 17 above). 

122.  I shall consider this matter in the course of considering the matters upon which the Council relied in reaching its decision.  As Mr Dykes submitted, the Council must have known of the effect of these regulations, and made its decision not to distribute Ms Tam’s materials, notwithstanding that effect.

Other means of communication open to Ms Tam:

123.  It is right that there are other means by which Ms Tam may communicate with eligible voters. 

124.  The Institute has advised its members through its newsletters that those who wish to receive Ms Tam’s newsletters may contact her and add their names to her database.  The Institute has established a service by which members who wish to receive the newsletters, but do not wish to release their personal data to Ms Tam, can receive the materials via the Institute. 

125.  It is true too, that it may reasonably be assumed that all members of the Institute, all of whom are professional people, may have access to computers and may be able to read any of Ms Tam’s material on her website if they wish.  A reference to Ms Tam’s website is contained in the Institute’s website.

126.  In my view these matters do not provide an answer to Ms Tam’s complaint that the Council acted unlawfully in reaching its decision.  They are, however, factors that are relevant in the course of making the decision by the Council, and accordingly factors to be taken into account by the Council, albeit factors which will not need to be accorded great weight.

Irrelevant and extraneous considerations:

127.  Mr Dykes contends that in reaching its decision to cease distribution of the newsletters the Council took into consideration its difference of opinion with Ms Tam on the matters of constitutional reform and the GST.  He argues that these were irrelevant considerations.  He further says that the fact that Ms Tam adopted a political stance on various issues was also an irrelevant consideration.

The differences between Ms Tam and the Council:

128.  Mr Dykes does not hide from the submission that the Council decided to stop distributing Ms Tam’s newsletters, effectively as a form of punishment to her, because of her open disagreement with them and her public criticism of the Council.

129.  Mr Pannick has taken me carefully through the chronology to support a submission that the differences of opinion were not a consideration in making the decision.  He says that the Council were perfectly entitled to take into account the content of the materials Ms Tam sought to send to members.  They were, he argues, entitled to adopt the approach that if the materials expressed partisan political views on issues which were not confined to “a matter affecting the professional interests of the accountancy profession”.  In that circumstance, Mr Pannick says, the Council was right to decline to distribute the materials.

130.  There were two main areas in which Ms Tam and the Council held diametrically opposed views.  They were the matters of constitutional reform, and GST. 

131.  It is right, as Mr Pannick has pointed out, that the issue of constitutional reform, and the differences between Ms Tam and the Council occurred at the end of 2005, and the beginning of 2006.  Although there was a temporary cessation of distribution at this time, limited to one newsletter only, distribution was resumed. 

132.  The final decision to cease distribution of the newsletters did not take place until September 2006, eight months later.  Mr Pannick says that consequently it cannot be said that the differences over constitutional reform, and the public exchanges that arose therefrom, had any impact at all on the decision of the Council.

133.  The decision to cease distribution of the newsletters followed immediately after the public dispute between Ms Tam and the Council over the GST survey.  The strength of the views held by at least two Council members on this matter may be seen in the words used by Mr Chow, see para 72 above.

134.  It cannot be argued that the public dispute over GST was a matter not taken into account by the Council in making its decision on 19 September 2006.  That it was taken into account appears plainly from the minutes of the Council meeting on that day.

135.  I have listened carefully to Mr Pannick’s review of the chronology.  It is clear,  however, from the terms of the letter of 9 October 2006, in which the Council informed its members of the decision to cease distributing the newsletters, that the Council has had regard to the earlier disputes as well.  In that letter, the following expressions appear:

“	After much thought and deliberations over the course of two years....
	Ms Tam has adopted an increasingly political stance on many issues,...
	This decision, .... comes after the LegCo representative’s ongoing public attacks and criticisms against the Institute in her newspaper columns, letters to members and the media.”

The expressions which I have emphasised are expressions which do not refer to a particular event immediately preceding the decision, but instead, events that have taken place, progressively, over a period of time.  From this it can plainly be seen that the Council has had regard to the whole of the course of their relationship with Ms Tam in reaching their decision.

136.  I am accordingly satisfied that in reaching its decision to cease distributing the newsletters, the Council had regard to the fact of its disputes with Ms Tam and the disagreements, between them on the various issues involved, going back prior to December 2006.

Ms Tam’s “overt political stance”:

137.  Further, it cannot be argued that the Council did not take into account the fact that Ms Tam’s materials contained political comment.  Indeed the position of the Council is that they were entitled to reject the newsletters because they contained political comment, the Council saying that the newsletters should be confined to matters affecting the professional interests of the accountancy profession.

138.  A legislative councillor for a functional constituency is elected, not to represent the members of the constituency only in relation to matters affecting the particular common interest that they share, which entitles them to be members of that functional constituency.  I accept Mr Dykes’ submission that the fact that Ms Tam represents a functional constituency does not limit or qualify her functions under Article 73 of the Basic Law.  Mr Dykes correctly put it this way:

“	(The representative) is a LegCo member first with duties to that body which makes laws for all of the people in Hong Kong.  The duty owed to the constituents is a duty of judgment, particularly in the deliberative processes of LegCo.  The representative is not a mouthpiece for vested interests.
	That means a LegCo member, if personal convictions dictate, not following the opinion of a section of his constituency, even a majority, although it means listening to constituents views conscientiously.”

139.  That is undoubtedly right.  It is foolish to suppose that a lawmaker, even one from a functional constituency, can be apolitical.  It is inevitable that the proper communications of a legislative councillor to his constituents, whether geographical or functional, will be of a political nature.  That is so because the business of lawmaking necessarily involves the discussion of political principles and the expression of views of a political nature.  For the legislative councillor in the accountancy functional constituency, the role is not confined to one that deals solely with matters of direct professional relevance to chartered public accountants.

140.  When the role of a legislative councillor is seen in its proper light, it is difficult to see how a councillor can in any way be criticised for expressing an “overt political message”, or taking “a political stance on issues”, whether the stance was “increasingly so” or not.

How should the Council deal with criticism:

141.  The Council is a statutory body and exercises regulatory functions.  As such it will from time to time be faced with public criticism. There will be times when the Council may consider that criticism made of it is unfair, or unreasonable, or even not based on fact.

142.  There are three courses open to the Council when it is the subject of criticism. 

143.  The usual course, and the best course, will be to answer the criticism with fact, logic and reasoned argument.

144.  Second, it will be open to the Council, or individual members, to take defamation proceedings in appropriate circumstances.  If they do so  they will need to bear in mind the right of those making the criticism to be able to make fair comment on matters of public interest, (see paras 88-94 above).

145.  Third, if the criticism comes from a member of the Institute, and is totally unfounded, the criticism may constitute professional misconduct.  In those circumstances it is open to the Council to seek appropriate disciplinary sanctions against the criticiser, following the procedures contained in the PAO.

146.  But in none of these three circumstances is it open to the Council to punish the critic by some other sanction, such as the refusal in the present case to distribute the newsletters

147.  It is right that the Council expressed the view that it would respect Ms Tam’s right to voice her own political and personal opinions.  It did so both in the minutes of the Council meeting, on 19 September 2006, and in the letter to members on 9 October 2006.  It repeated this view on 15 December 2006, when advising Ms Tam of the decision following her request for a further review.

148.  But when the whole of the circumstances are looked at in context those expressions of respect may be seen to be mere window dressing.  The Council, taking grave exception to the positions and statements from Ms Tam, has acted to punish her for those expressing those political and personal opinions by declining to further distribute her newsletters.

149.  The fact that the Council had disagreements with Ms Tam over the views that she was expressing, and the manner and the forums in which she expressed them, has no bearing whatsoever on the issue as to whether or not the Council should continue to distribute Ms Tam’s newsletters.  Equally, Ms Tam was perfectly entitled to express political views in her newsletter, and to increase her political stance on a particular issue.  It was her duty to do so.  In so doing she was properly discharging her role as a legislative councillor. 

150.  I accordingly conclude that in taking into consideration the fact of the disputes that had taken place between Ms Tam and the Council, and the content of the newsletters, with which the Council disagreed, the Council in reaching its decision, had regard to an irrelevant consideration. 

151.  In assessing whether or not it ought to continue to distribute Ms Tam’s newsletters, the Council should have disregarded these matters.

Failure to take into account relevant considerations;

152.  Two matters arise here.  First is the fact that the register held by the Institute provides the only available link for the legislative Council representative, to the members of the electorate.  Second is the question of the effect of the disclaimer.

The register as a link:

153.  In paragraphs 88-111 above I have considered the role of freedom of speech and the unique situation of the functional constituencies.  I have come to the conclusion that it is necessary to read the LCO and the PAO together when considering functional constituencies.

154.  While I accept that Ms Tam has no right to demand the distribution of the newsletters, an important factor to be taken into account by the Council in determining whether or not to distribute the newsletters, is the fact that the Institute holds the only complete list, other than the electoral register, of constituents and potential constituents in the functional constituency. 

155.  A functional constituency representative cannot easily communicate with constituents in the same way that a geographical representative can; that is by a simple mail distribution throughout his geographical area.  Thus, the ability to distribute a newsletter to constituents through the use of the Institute register, without offending PDPO principles, is an important factor.

156.  I accept that the Council has recognised, to an extent, the importance of this fact.  This is demonstrated by the Council taking steps to enable members to give their details to Ms Tam, or to facilitate the distribution of the newsletters to those who did not wish to disclose their details.  The maintenance of a link to Ms Tam’s website on the Institute’s website also assists in this respect.

157.  But the link provided by the register to the members of a functional constituency demands a greater recognition than was accorded by the Council.  Having regard to the importance of the role of a functional constituency legislator, the number of functional constituencies in LegCo, and the importance of them in the political life of Hong Kong, the link provided by the register will be a very important factor upon which a significant weight would need to be attached.  The steps taken by the Council, described above in para 156, failed to give appropriate recognition to the importance of this factor.

158.  Very strong reasons would be required to deny a functional constituency legislative councillor the type of access to the register that is sought by Ms Tam.

159.  I should add that it is no answer for the Institute to say, in respect of its obligation to have regard to this factor, that the members of the Institute are not the same as the electorate.  The members of the electorate comprise 80% of the members of the Institute, and the remaining 20% are potential members of the electorate.  It is perfectly reasonable for a legislative councillor for a functional constituency to wish to communicate, not only with the members of the electorate, but also with those who may in the future become electors.

Segregation of views and the disclaimer:

160.  The concern of the Council, made clear in the minutes of the meeting of 19 September 2006, and the letter to members on 9 October 2006, was that there was a need to segregate the views of Ms Tam from those of the Institute.  The Council was perfectly entitled to ensure that such a segregation took place.

161.  But there is nothing in the evidence, or the minutes of meetings, or the letters, to indicate that in dealing with this issue the Council had any regard at all to its own requirement for, or the effect of, the disclaimer.

162.  The disclaimer is in clear terms, and was prominently displayed on the outside of the newsletter.  It was in a position where it would be seen by the recipient, before the recipient saw the contents of the newsletter.  The font size required by the Council, (and with which Ms Tam disagreed), ensured that the disclaimer was prominent.

163.  The presence of the disclaimer was perfectly adequate to ensure that the recipient of the newsletter was properly aware that the views expressed by Ms Tam in the newsletter did not necessarily represent the views of the Council.  The appropriate segregation of the Council from Ms Tam’s views was accordingly achieved.

164.  I am satisfied that in reaching its decision the Council has fallen into error in failing to have proper regard to the effect of the disclaimer in ensuring that the views of Ms Tam are segregated from those of the Council.  The plain effect of the disclaimer in segregating the views of the Council and Institute from those of Ms Tam means that considerable weight must be given to the consequences of the disclaimer in achieving the purpose sought by the Council.

Violation of principles of equality and consistency;

165.  It is well established that a power exercised inconsistently or unequally is a power which may be improperly exercised.  The principle is stated in de Smith, Wolf & Jowell, Judicial Review of Administrative Action, 5^th Ed para 13-05 in the following terms:

“	(The power is improperly exercised where there are) decisions taken in violation of common law or constitutional principles governing the exercise of official power.  These principles apply even where the discretion has been conferred in the widest terms.  Two principles will be considered:
	(a)	the principle of legal certainty (which requires the protection of substantive legitimate expectations); and
	(b)	the principle of equality (which requires decisions to be consistently applied and prohibits measures which make unjustifiable or unfair distinctions between individuals).”

166.  Mr Dykes sensibly does not argue on the basis of a legitimate expectation.

167.  Mr Dykes relies upon the fact that for nearly 20 years the facilities of the Institute and the register had been made available to previous LegCo representatives for the accountancy functional constituency to enable them to distribute newsletters to electors, and other members of the Institute, without complaint from the Council.  He argues that in the absence of proper reasons for stopping the distribution the Council has treated Ms Tam unequally from other representatives for the constituency.

168.  It is clear from the evidence that, at the very least, Ms Tam’s immediate predecessor expressed political comment in the newsletter he circulated.  It may be reasonably assumed that previous representatives, in the newsletter circulated, did not confine themselves to matters strictly within the purview of the interests of certified public accountants and their professional activities.

169.  The Council purports to justify its distinction between Ms Tam and previous representatives by asserting that her newsletters contained “overt political messages”, and that she took an “increasingly political stance”.  These are subjective tests, which may be seen to represent the collective political view of the current Council.  They are a view which may well change should there be a change in the composition of the Council.

170.  The test adopted by the Council has been inconsistently applied.  While asserting that Ms Tam ought not express overt political messages, or take a political stance in her newsletters, the Council itself has given consideration to both of the political issues of constitutional reform and GST, on which it sought to segregate Ms Tam’s views.  The Council did not confine itself to matters related to the professional interests of chartered public accountants.

171.  It is no answer to the complaint of inequality of application of standards for the Institute to say that it reserved to itself the discretion not to distribute the material.  As I have demonstrated, it did not actually make that reservation; the reservation arises from the mere existence of the discretion.  Mr Dykes does not suggest that it would have been proper for the Council to fetter its discretion in such a way that it could not reconsider, upon proper grounds, the termination of the service of distribution of the newsletters.

172.  What is plain is that the Council did not consider the past practice of distributing newsletters when making its decision.

173.  There is nothing in the evidence, nor in the minutes of meetings, nor the letters advising either Ms Tam or members of the Institute of the decision, to indicate that the Council has paid any attention at all to the fact that it has distributed newsletters for previous LegCo representatives without complaint for nearly 20 years.

174.  The principle of equality, as applied in this particular circumstance, would require the Council to take the fact of 20 years of distribution as its starting point in its consideration as to whether or not there are any justifiable reasons to depart from the practice.

175.  Having regard to the long duration of the practice, very strong reasons would be required to justify to departure the practice of distribution.

Personal Data (Protection) Ordinance concerns:

176.  There is no doubt that the Institute is a data user, as defined by s 2 PDPO, and that accordingly the Data Protection Principles enshrined in PDPO apply.

177.  The Council made no reference at all to PDPO issues when it reached its decision on 19 September 2006.  It did not refer to PDPO issues when, in the circular letter of 9 October 2006, prepared specifically for the purpose, it informed its members of the decision to cease distributing Ms Tam’s newsletters.

178.  The first reference to PDPO came on 24 October 2006, at the first review of the decision, when the Institute determined that as a matter of policy it would only use the personal data of its members for “the purpose for which those data were collected”.

179.  I am satisfied that while the Council subsequently relied upon PDPO to justify its decision, PDPO issues were not at all considered relevant to, or even considered by, the Council when it made its original decision.

180.  The extent to which Mr Pannick was able to argue that there has been a breach of a Data Protection Principal is limited to a suggestion that Data Protection Principle 3 should be invoked.  That Principle provides:

“	Personal Data shall not, without the prescribed consent of the data subject, be used for any purpose other than –
	(a)	the purpose for which the data were to be used at the time of the collection of data; or
	(b)	a purpose directly related to the purpose referred to in paragraph (a).”

There is no suggestion that any application form to be completed on the part of a certified public accountant wishing to be placed upon the Register of certified public accountants, states that one of the purposes for which the data in the application is collected is to enable the distribution of information from the Legislative Councillor for the accountancy functional constituency, to electors of that constituency.

181.  It is here again, that the link between the PAO and the LCO becomes important.

182.  As I have set out above, the basis of the electoral register for all of the functional constituencies is a form of professional register, or other collection or record, all in a central place, of persons who may be or become eligible to be electors in the functional constituency.  Thus, an application for registration as a certified public accountant under the PAO is, as well as serving its primary and obvious purpose, the first step towards application to join the electoral register for the Accountancy functional constituency.

183.  The inevitable interrelationship that arises between the LCO and the PAO, means that it may properly be said that an additional purpose in supplying data for registration on the register of certified public accountants is to enable the establishment of the primary qualification to become an elector in the accountancy functional constituency.

184.   I am satisfied, for the reasons set out in paragraphs 88-111 above, that freedom of speech, the role of a legislator, the importance of the ability of a legislator to communicate with electors, and the unique situation of the functional constituencies in Hong Kong, means there is a further purpose of the register when the LCO and PAO are read together.  That is that the register may be used to enable elected representatives of the accountancy functional constituency to communicate with electors and potential electors.  Of course it might only be used in such a way as will not offend other Data Protection Principles.

185.  I have accordingly satisfied that there has been no breach of Data Protection Principle 3 of the PDPO.  That is so because in using the data in the register to distribute newsletters, the data is being used for one of the purposes for which it was intended, at the time of the collection of the data, it would be used.

The effect of no personal access to the database by Ms Tam and the disclaimer:

186.  If I am wrong in that conclusion, I am in any event satisfied that any PDPO concerns are met by the fact that Ms Tam does not seek personal access to the relevant database, and the terms of the disclaimer.

187.  Ms Tam makes it clear that she does not wish to have supplied to her the database held by the Institute.  She is not entitled to it.  She only wishes the practice of distribution of her materials by the Institute, as was undertaken in the past, to continue.  In that way the data is kept secure.

188.  Data Protection Principle 3, the particular Principle relied upon by Mr Pannick, allows a person to “opt out” of personal data use by a third party.  It does so by the use of the expression; “without the prescribed consent of the data subject”. 

189.  The terms of the disclaimer are clear.  In specific terms, recipients of the newsletter are invited to inform the Institute if they do not wish to receive future issues.  That statement, included with the disclaimer, properly and adequately meets the requirements of Data Protection Principal 3.

190.  Finally, in so far as PDPO principles are concerned, it is worthy of note that the PDPO was enacted in 1996.  The Data protection Principles do not seem to have concerned the Council in respect of the distribution of newsletters on behalf of functional constituency representatives prior to Ms Tam.  Mr Dykes was entitled to say that if distribution is not unlawful, Ms Tam should have the same distribution privileges as her immediate predecessor.

191.  It being the case that the use of the register to distribute newsletters did not offend the PDPO, the Council took into account an irrelevant matter in relying upon the PDPO as a justification for terminating distribution.

The decision of the Council was irrational:

192.  The argument based upon irrationality reflects a combination of the consideration of the foregoing factors.  If proper considerations to the exercise of the power can be shown to have been considered and balanced and weighed by the decision-making body, the courts will be reluctant to interfere.  But if manifestly excessive or manifestly inadequate weight has been accorded to relevant considerations, or irrelevant matters taken into the balance, or relevant matters ignored, the decision made in consequence may be found to be irrational.

193.  I have found that the Council has had regard to irrelevant and extraneous considerations, namely the matters of political substance with which it disagreed with Ms Tam, and the public positions taken by Ms Tam in relation to those matters.  In having regard to the plainly, but properly, political nature of the content of the newsletters the Council has had regard to an irrelevant consideration.

194.  In reaching its decision to terminate the distribution of the newsletters the Council has failed to give proper weight to the importance of the register as a link between members of the electorate and a functional constituency legislator.  It has further failed to give proper weight to the consequences of its requirement that there should be a disclaimer attached to each newsletter, thus making it clear that the Council’s views are not necessarily the same as Ms Tam’s views.

195.  The Council has failed to have proper regard to the principle of equality, and to take into account the fact that it has distributed newsletters for the functional constituency representatives, without complaint, for nearly 20 years.

196.  The Council has wrongly relied upon the provisions of PDPO to conclude that the distribution of the newsletter offended Data Protection Principles.

197.  Further, having regard to the fact that Ms Tam does not seek direct access to the database, the fact that the database, the register, constitutes a link between the LCO and the PAO, and the effect of the opt out provision in the disclaimer, no PDPO issues arise, and the Council was not entitled to rely upon PDPO as a justification to terminate distribution.

198.  Against these matters, I have regard to the qualified willingness of the Council to distribute newsletters in the future, so long as they are confined to matters affecting the professional interests of the accountancy profession.  I must have regard to other methods by which Ms Tam may make their views known. 

199.  I have regard also to the steps taken by the Council to inform members as to how they make contact Ms Tam.  I have regard to the restrictions on the use of the electoral register, and that Ms Tam may communicate with the eligible voters through other means.

The extent of any obligation to distribute:

200.  Mr Pannick says that the court should be slow to interfere in the decision because if a right to distribution is found, difficult questions as to the determination of the scope of the right and of fairness would arise.

201.  The submission may be answered in two ways.  First, as I have made clear, it is not open to Ms Tam to demand, in these proceedings, a right to distribution, but only a right to have a decision of the Council as to distribution made in accordance with law.

202.  Second, any question of fairness, as between Ms Tam and those who wish to stand against her in the next election, or the number of newsletters which might be distributed, are matters which ought to be able to be safely left to the discretion of the Council. 

203.  Mr Pannick said that in the absence of any legislative provision, the Court had no criteria by which to define the scope of any obligation on the part of the Institute.  Could they be required, he asked, to send her materials to members every month, or every week, or every day, or even every hour.

204.  With respect to Mr Pannick, the argument amounts to nothing more than saying that if a discretion is difficult to exercise it ought not to be exercised.  That is plainly wrong.

205.  The simple answer is that the Court may expect that the Council will act sensibly and apply proper criteria in determining any request for distribution Ms Tam may make.  Plainly, a request for distribution on an hourly basis would be unreasonable.  Equally plainly, a request for distribution monthly would appear to be reasonable.

206.  What falls between may vary depending upon the particular stage of the electoral cycle at which the request is made.  In the period close to an election the Council may well consider a weekly newsletter to be considered reasonable.  Outside the election period, and when LegCo is in recess, it may well be reasonable to refuse to distribute a weekly newsletter.

207.  It will be for the Council to determine, from time to time, in the light of circumstances existing at the relevant time, whether or not it considers a particular request for distribution made by Ms Tam to be excessive.

Costs of distribution of the newsletter:

208.  Although no particular argument was made on the point, it is clear that there has been an issue between the parties in the past as to who should bear the cost of distributing the newsletters.  I have no doubt at all that if the Institute is put to any additional expense, over and above its own newsletter or e-circular distribution costs, in distributing Ms Tam’s newsletter, it is only right that she should bear that cost.  I understand that she now accepts that position.

Conclusion:

209.  It is a first principle of judicial review that the remedies are discretionary.  A claimant may succeed in establishing the grounds upon which he relies, but may be refused a remedy, in the exercise of the court's discretion.

210.  In the present case it is necessary for me to weigh, in the Council’s favour the matters which it has properly taken into account, those which I have set out in paras 198-199 above.  Against those I must have regard to the errors made by the Council, summarised in paras 192-197 above.

211.  I have had careful regard to all of these factors.  I am satisfied that the matters in favour of the Council are not sufficient to outweigh the errors made by the Council in reaching its decision.   

212.  I accordingly find that the decision of the Council to terminate the distribution of Ms Tam’s newsletters was made in consequence of errors of law, and is accordingly irrational.

213.  The decision of the Council, made on 19 September 2006, and subsequently reaffirmed on three occasions, must be set aside.

The consequence of the decision:

214.  Until such time as the Council makes a decision, based upon a lawful consideration of the relevant criteria, to terminate the distribution of the newsletters, Ms Tam is entitled to have the status quo restored, and her newsletters must be distributed by the Institute.

215.  However, it is open to the Council of the Institute to consider the matter again, having regard to the terms of this judgment, and the matters that it must take into account and the proper weight that is to be attributed to those matters, as indicated by this judgment.

Costs and Orders:

216.  There will be an order nisi that the Institute must pay the costs of the proceedings to be taxed on a party and party basis.  If necessary, I will hear counsel on the terms of the order.  Leave is accordingly reserved to apply.