DELOITTE TOUCHE TOMATSU (a firm) v. THE HONG KONG SOCIETY OF ACCOUNTANTS

HCAL97/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW

LIST NO.97 OF 1999

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J U D G M E N T

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1. By this application for judicial review, the applicants, who are a well-known firm of accountants, ask the court to quash a May 1999 decision of the Council of the Hong Kong Society of Accountants to appoint an Investigation Committee to examine the applicants' conduct of an audit of financial statements of Guangnan (Holdings) Limited for the year ended December 1997; and they also seek a declaration that the Society has, by reason of certain statements made to the press in the course of 1999, breached the secrecy provisions of the Professional Accountants Ordinance.

THE APPLICANTS: AUDITORS FOR GUANGNAN

2. Between 1984 and April 1999, the applicants acted as auditors for Guangnan (Holdings) Limited ("Guangnan"), a Hong Kong publicly listed company. They audited the accounts of Guangnan for the year ended December 1997 and, on 28 April 1998, reported that, in their opinion, those accounts gave a true and fair view of the state of affairs of Guangnan as at 31 December 1997.

3. In the course of 1998, a number of businesses controlled by the Guangdong Provincial Government faced severe financial problems and, in December 1998, that provincial government stated that it had appointed a prominent US investment bank to advise on the restructuring of Guangdong Financial Enterprises - a group of which Guangnan is part. Another well known firm of accountants, KPMG, was appointed to advise on that proposed restructuring, as well as to implement a cash management programme for the group.

ANNOUNCEMENTS

4. In January 1999, an announcement by Guangnan appeared in the press, in part a response to reports in December 1998 of the arrest of an employee of the company. The announcement said that KPMG was to prepare a report about the financial condition of the group, and that it was understood that preliminary findings indicated, inter alia, inappropriate accounting from various financial transactions. KPMG was also assisting the group in the implementation of a cash management programme. Its report was expected by 28 February 1999.

5. The next announcement was dated 8 February 1999. The Board, it said, had met with KPMG to discuss its principle findings, and KPMG had said that there had been inappropriate accounting, and improper and irregular practices - these included transactions in respect of which KPMG had been unable to satisfy itself that goods existed for some transactions in respect of which letter of credit facilities had been obtained; and that loans had been made in respect of which KPMG had been unable to satisfy itself that they were not to related parties.

6. On 2 March, there was announced the audited consolidated accounts of Guangnan and its subsidiaries for the nine months ended 30 September 1998, as audited by KPMG. In part, the report thus published said :

"... provisions have been made against certain balances aggregating HK$2,453.6 million which were brought forward from 31 December 1997. At least HK$1,079.3 million of these items represents provisions which ought to have been made at 31 December 1997 or in prior years. However, no allocation of any of the provisions as prior period adjustments has been made. In our opinion, a substantial part of the provisions made in the accounts for the period ended 30 September 1998 should have been made in the accounts in prior years and should be regarded as prior period adjustments in preparing the accounts for the period ended 30 September 1998 with a corresponding reduction in the loss for the current period. We are unable to quantify the exact quantum of the total amount of such prior period adjustments but are of the opinion that the total amount should be in excess of HK$1,079.3 million."

7. Amongst the Notes on the accounts, under "Exceptional items", were questions about the authenticity of material trading transactions; reference to debtors who represented suppliers of the group to whom deposits were paid in anticipation of delivery of goods but where delivery of the goods or return of the deposits were now in doubt; a suggestion that advances to PRC livestock and fish food suppliers were unsecured and were not made in the ordinary course of trade which was normally conducted on a cash-on-delivery basis; and mention of an item representing payments made for which no documentary evidence could be found to substantiate their nature or their recoverability.

REACTION TO THE ANNOUNCEMENTS

8. These events, and particularly the report of 2 March, triggered concern on the part of the regulatory authorities in Hong Kong, and of the respondent Society, whose Council met on 2 March and discussed the matter. The Council then decided to write to the Stock Exchange, to KPMG and to the applicants to find out what they could about the matter.

9. On 8 March 1999, the Stock Exchange of Hong Kong ("the Stock Exchange") wrote to the respondent referring to the company's announcement published on 2 March and to the provisions which were brought forward from December 1997 :

"The Exchange has grave concern on the reliability of the financial statements issued by the Company in 1997 and prior years ..."

and wondered :

"... why the significant misstatements in the 1997 Financial Statements were not detected."

10. On the same day, namely, 8 March, the Society wrote to the applicants referring to Guangnan's announcement of 28 February 1999 and to the suggestion there advanced that at least $1,079 million provision ought to have been made at 31 December 1997, or previously.

" ... The Council of the Society has instructed me to write to the Stock Exchange ... and KPMG to obtain further information about the accounts and we may contact you in due course in connection with the matter.

Meanwhile, you are most welcome to make any representations that you may have on the matter."

11. There was a reply by the applicants to that letter, which, apparently, the Society never received. That reply is dated 10 March 1999, and says that in the absence of full details of the alleged exceptional items of $1,079 million and the reasons why they should have been provided for as at 31 December 1997 "... we are unable to make any representations at this stage".

12. On 9 March 1999, the Stock Exchange wrote to the applicants asking why the significant misstatements in the 1997 Financial Statements were not detected, and asking for a detailed submission. The applicants replied on 12 March saying that they had not thus far been approached by KPMG to discuss the findings; that KPMG had made their findings within the perameters of a restructuring exercise and might therefore have based their conclusions upon different material to that examined by the applicants as auditors; that they, the applicants, had no information as to why KPMG had come to the conclusions it had; and that KPMG had not conducted an audit of the accounts for the year ended 31 December 1997. The applicants wrote again on 22 March 1999 telling the Stock Exchange that they could not give the submission required in the Stock Exchange's letter of 9 March 1999 because "... our client has not provided us with the information needed to do so".

13. On the same day, that is, 22 March, KPMG wrote to the Stock Exchange providing an analysis of the $1,079 million provision which they said ought to have been made. That analysis, without appendices, runs to some five pages; and there would appear to have been sent at least nine appendices.

14. On 29 March 1999, a Mr Chow of Guangnan wrote to a Mr Choong of the applicants, attaching a letter from KPMG to the Stock Exchange :

"... of even date to Mr Lawrence Fok of the Stock Exchange ... I believe the information would substantially help you in preparing the submission to the Stock Exchange.

It seems clear to me that the reference "even date" is faulty because there was no letter that I have from KPMG to the Stock Exchange of 29 March 1999, and in their letter to the Stock Exchange of 8 April 1999, the applicants said that :

"We were supplied on 29th March 1999 with a copy of KPMG's letter to you of 22nd March 1999 and its enclosures ..."

It follows, and it has been conceded, that the applicants had that analysis - a detailed analysis - as from 29 March 1999, or shortly thereafter.

15. By a letter dated 31 March 1999, the Stock Exchange provided the respondent with a copy of KPMG's submission of 22 March 1999; and on the same day, the solicitors for Guangnan wrote to the respondent saying that there was no objection to the release to the respondent by the Stock Exchange of that submission, but pointing out that the respondent was not authorised to release it to the applicants.

16. On 8 April 1999, the applicants wrote to the Stock Exchange saying that although they had the letter of KPMG to the Stock Exchange of 22 March 1999 with enclosures :

"... we still do not have adequate information from KPMG or the Company [Guangnan] to comment intelligently on the reported allegation ... that there were misstatements in the Company's 1997 financial statements. ... However, such minimal information as has been provided calls KPMG's supposed conclusion into question."

The applicants embarked upon an analysis of the allegations, and answers to them. Included in their answers were the contentions that the suggestion that there should be a provision against stocks with respect to an eel inventory was a suggestion not supported by the material which was provided to the applicants; that a subsidiary whose assets included a debt of $15.6 million which was said to be liable to write-off was not even a subsidiary at year ended 1997; that other debtors included in the proposed write-off did not in fact owe the company any debt in the year in question. Lengthy follow-up questions came then from the Stock Exchange.

17. On 20 April 1999, the applicants resigned as statutory auditors of Guangnan, the Board of Guangnan announcing that the reason for the resignation arose from the exigencies of the restructuring and a substantial overlap with work already carried out by KPMG, emphasising that the change had nothing to do with the applicants' past performance of audits.

18. Not surprisingly, the plight of Guangnan was the subject of media coverage and interest; and by late April there had appeared newspaper articles, including one suggesting that the respondent was to investigate the audit, and articles about the applicants' resignation as auditors.

THE MEMORANDUM OF 30 APRIL

19. Thus far, there had been no communication between the respondent and the applicants since the letters of 8 March 1999 and the reply (not received) of 10 March 1999. That was the state of things on 30 April 1999, when a memorandum was written to the Council members by the Registrar of the Society. It drew attention to the special accounts of the company for the nine month period ending September 1998 and to adverse press coverage; to the fact that the Society had written to the Stock Exchange and to KPMG for information, and there was appended to the memorandum the letter from KPMG to the Stock Exchange dated 22 March 1999; reference was made to the items in respect of which it had been suggested that provision ought to have been made.

20. The Council was invited to consider a number of options : whether to refer the matter to the Professional Standards Monitoring Committee ("PSMC"); refer the case to a special working group; or constitute an Investigation Committee. The Council was reminded that it would need to consider whether the information presently available would give grounds for a reasonable suspicion under section 42C(2)(a) of the Ordinance; and added that "DTT is considering the option of voluntary disclosure and the outcome of its consideration will be reported to the Council at the forthcoming meeting". The memorandum shows that "relevant sections" of the Ordinance were sent to the members. The section in fact sent was section 42 of the Ordinance.

THE DECISION OF 4 MAY 1999

21. On 4 May 1999, the Council met to make its decision. Mr Best, a partner of the applicant firm, was there, but he quite properly absented himself for this item of the Council's business. However, before doing so, and according to the minutes, he pointed out that the firm was willing to co-operate to enable the Society to have access to the working papers, and for that reason the Council should consider not instigating the statutory investigation "as this would attach stigma to the firm".

22. The minutes say that :

" The Council considered the following three alternative courses of action that should be taken by the Society in connection with the Guangnan case :

- Refer the case to the PSMC; or

- Refer the case to a special working group; or

- Constitute an Investigation Committee.

In its deliberations, the Council took into consideration the nature of the case, the resources problem associated with the PSMC as well as any working group appointed for this purpose; the voluntary co-operation offered by the firm, the possible adverse impact on the firm concerned, the legal implications in the event of a law suit arising during the course of investigation and the course of action that should be taken by the Society in respect of existing and further corporate failure cases."

The minutes go on as follows :

" Having taken into consideration all the factors laid before the meeting, members acknowledged that the advantages of referring the case to an Investigation Committee appointed under section 42C of the Professional Accountants Ordinance instead of referring it to PSMC or a working group appointed for this purpose would be :

(a) As the Investigation Committee has statutory powers to obtain documents, other information and explanations under section 42D of the PAO, the case should be handled in a more effective and expeditious manner as compared to the PSMC or a special working group despite the voluntary co-operation offered by the firm;

(b) The statutory secrecy requirements imposed by section 42G upon the Investigation Committee, Council, the Registrar and any other person assisting the Investigation Committee will render the findings of the Investigation Committee not discoverable by any person in the event of a law suit;

(c) Section 42D(3) provides a measure of protection for persons from incurring liabilities to any other person by virtue of their providing information to the Investigation Committee; and

(d) In the light of public attention on the matter, the findings of an Investigation Committee will be more conclusive and credible than a non-statutory inquiry.

On the question of adverse publicity, members were of the opinion that there would not be much difference whether the case was to be handled by an Investigation Committee, the PSMC or a special working group, in so long that the Council would not publicise the fact in a high profile manner.

In conclusion, the Council resolved that an Investigation Committee should be appointed to examine whether the firm had complied with the professional standards of the Society in their audit of the financial statements of Guangnan Holdings Limited for the year ended 31 December 1997."

As we shall see, the decision was not communicated to the applicants until 10 May, or rather by a letter dated 10 May.

23. On 5 May 1999, the applicants wrote to Guangnan withdrawing their audit report on the 1997 accounts. The applicants had taken a view that the nine month accounts for the period ended 30 September 1998 were inconsistent with the company's representation to the applicants which had formed the basis of the audit of the 1997 accounts; and the applicants were no longer sure that those accounts ought to be relied upon.

24. On 7 May 1999, the applicants wrote to the respondent saying that they understood that the Society was considering the setting up of an investigation under the Ordinance and assumed that, although there was intense media pressure to provide comments about the Guangnan's situation, the officers would bear in mind the secrecy provisions of the Ordinance and not make the existence of such investigation a matter of public knowledge. The reply, on 10 May 1999, was that the Society had been advised that there was no bar to announcing the fact of an investigation.

25. It would appear that the letter of 10 May 1999 by which the applicants were advised of the appointment of an Investigation Committee did not come as a surprise to the applicants : Mr Best's attendance at the meeting of the Council on 4 May 1999 and his comments then, show an awareness that day of the possibility that an Investigation Committee would be appointed. And there is a letter dated 14 May 1999 from the applicants to the respondent in which Mr McKelvie refers to a meeting that he had had with Mr Louis Wong, Registrar of the Society, on 9 May; and in that letter he refers to concern expressed at that meeting (of 9 May) that the investigation should focus only on the 1997 audit, and that the Investigation Committee should also review any complaint that might be made by the applicants against KPMG.

26. On 10 May 1999, the respondent wrote to the applicants. It was a very short letter and it said :

" I write to advise that Council has decided to constitute an Investigation Committee under section 42C of the [Professional Accountants Ordinance] to look into the conduct of the audit by your firm of the financial statements of Guangnan ... for the year ended 31 December 1997.

I shall write to you again in due course to advise the composition of the Investigation Committee and their precise terms of reference."

LETTERS OF APPOINTMENT

27. On the same day, 10 May 1999, a letter of appointment went to each of the members of the Investigation Committee who had been appointed, advising each of his appointment and the terms of reference of the Committee :

" Subject to endorsement by the Council, the terms of reference of the Investigation Committee are to investigate the conduct of the audit of the financial statements of Guangnan (Holdings) Limited for the year ended 31 December 1997 ... by the [applicants] and by those professional accountants involved in that audit, in the light of information available to the Society, to ascertain whether there were breaches of the provisions of section 34(1)(a) of the [Ordinance] and to report its findings to the Council, specifying whether in the opinion of the Investigation Committee there is a prima facie case against the firm and/or any professional accountants. If so, the Council may in its discretion constitute a Disciplinary Committee and refer the matter to it. ...

The Council's concern ... was triggered by an audit report issued by KPMG, as special reporting accountants, on the special accounts prepared by the Company for the nine months ended 30 September 1998 in which KPMG opined that of the substantial provisions that were made in the nine month period against balances that were in existence at 31 December 1997, at least $1.1 billion ought to have been made in the year ended 31 December 1997 and prior as prior year adjustments. The Council has also received further information from the Stock Exchange in relation to the special accounts. In the light of the information available to the Council, the Council has constituted an Investigation Committee under Section 42C(2) of the PAO.

The Council would like to request the Investigation Committee to submit its report in two months time."

Then the appointee's attention was drawn to the secrecy provisions of the Ordinance.

AFTER THE APPOINTMENT OF THE INVESTIGATION COMMITTEE

28. There was further correspondence from the applicants to the respondent in May. In none of this correspondence was there any complaint about the establishment of the Investigation Committee, though there were suggestions that its work should be postponed pending the complaint that the applicants were to make in relation to KPMG.

29. So much for May. Matters then moved into June 1999, and on 1 June 1999, the Investigation Committee wrote its first letter to the applicants. Amongst other matters, they asked to see the applicants' working papers kept in relation to the audit.

30. On 2 June 1999, the applicants wrote to the Registrar to say that they had seen a preliminary announcement on 27 May 1999 of Guangnan's 1998 results, and asserted that they showed a recantation of earlier statements of the company that prior year adjustments were necessary. For that and other stated reasons, it was said that the investigation has lost "any scintilla of justification". They suggested that the respondent should dismiss or defer the investigation. A similar theme was repeated later in June. In response to the letter of 2 June, the Society replied on 14 June, saying that :

" The Society's investigations into the Company's 1997 Financial Statements arise from disquietude expressed in a number of quarters, including, not least, the Stock Exchange of Hong Kong Limited and the press.

The Society's investigations are not in any way circumscribed or dictated by the sources of the disquietude. ...

The Society has been advised that it is not required to elucidate evidence why it has such suspicion or belief : it suffices that, in the exercise of its statutory obligations, the Council has made the decision it has; namely the formation of an Investigation Committee."

31. The applicants came back to that assertion, saying that the KPMG report of 28 February 1999 was substantially flawed and entitled to no credibility. The annual report, they said, so recently released, confirmed the basis for their complaint about the February 1999 report. The Society, they said, could not reasonably hold the suspicions necessary to justify the inquiry.

32. By end June, the respondent was writing saying that the Investigation Committee wished to start its work. On the same day, however, the applicants wrote to the respondent lodging a complaint about KPMG. Amongst their complaints were that that firm had accepted the role as independent auditor notwithstanding their engagement to assist the financial management of the group. It was suggested in the covering letter that if even there had been a reasonable basis for suspicion that warranted the appointment of an Investigation Committee, that was surely now lost.

33. By early July, the applicants were saying in correspondence that at the time the decision was taken to launch the investigation, the Society could not have had a reasonable basis to take that decision.

34. On 9 July 1999, the respondent wrote again, telling the applicants that they had sought legal advice and had decided that the investigation should proceed. They added :

" We are conscious of the delays being experienced in the carrying out of the investigation. The community has a right to expect that the Society will act promptly and vigorously in such investigations. We therefore urge you to provide every co-operation to the Investigation Committee and provide the information as requested without further delay."

KPMG

35. It will be evident from the background to this case that KPMG are the subject of criticism by the applicants, and that they have laid a complaint against KPMG. But it is necessary to state that KPMG is not a party to these proceedings, although that firm has notice of them, and it has not appeared by counsel to advance submissions in answer to the assertions by the applicants. This was hardly the place or time to do so, and it is not for this court to determine the validity of the complaint; just as it is not for this court to determine whether the applicants, against whom no complaint has been made but in respect of whose audit this preliminary investigation is proposed, have in any way been at fault in the conduct of the audit.

THIS JUDICIAL REVIEW

36. Various forms of relief are sought, but the main thrust is an order to quash the decision to appoint the Investigation Committee, and to prevent the Committee from pursuing its investigation; and also a declaration that the respondent has acted in breach of the duty of secrecy imposed by Section 42G of the Ordinance by the public announcements, or the statements to the press, to which I have referred.

37. The grounds of complaint are these :

(1) That whilst it is a condition precedent to the lawful appointment of an Investigation Committee that the Council first reasonably suspects or believes that certain disciplinary offences have been committed by the firm or professional accountant whose conduct is considered, there was in this case no basis upon which the respondent could reasonably have arrived at such a suspicion or belief.

(2) That although it was published policy of the applicants to permit the appointment of an Investigation Committee only where the respondent was of the view that in order to conclude the matter satisfactorily it would require more than the voluntary co-operation of the member concerned, the legitimate expectation conferred by that policy statement was breached, for there was no evidence or basis upon which the respondent could have come to that conclusion before it appointed this Investigation Committee. There were, it was said, other conditions precedent for the appointment of the Committee which were also not met.

(3) That the respondent should have but did not inform the applicants of the proposal to constitute an Investigation Committee in respect of matters which had come to the respondent's attention, and in particular that the applicants were not asked prior to the decision to appoint the Committee to comment on the material before the respondent, most notably the KPMG report. This approach is said to have been in breach of the rules of natural justice.

(4) That the act of making public its decision to appoint the Investigation Committee was a breach of the secrecy provisions of the Ordinance.

There are further grounds added by the amendments permitted in the course of this hearing:

(5) That the respondent was obliged to, but did not, deliberate upon or decide precisely under which of the subsections of section 34 it was acting when it decided to appoint the Investigation Committee; and failed to identify to the Investigation Committee under which of the subsections of section 34 it was to conduct its investigation; and failed to advise the applicants under which of the subsections the Council had acted to appoint the Investigation Committee.

(6) That the respondent failed to give to the applicants reasons for its decision; in particular, that it failed to tell the applicants :

(i) the basis of its reasonable suspicion or belief that any one of the subsections of section 34 was relevant to the applicants' work; and

(ii) why it had concluded that resolving the matter satisfactorily would require more than the voluntary co-operation of the applicants -

and in refusing to give these reasons, deprived the applicants of the opportunity of satisfying itself that the respondent was acting lawfully.

(7) That the respondent failed, before making its decision to appoint the Investigation Committee, to provide materials to the applicants upon which it, the respondent, had acted in coming to its decision to appoint the Investigation Committee. Its duty to disclose that material arose, it is said, from prior practice, as a result of which, the applicants had a legitimate expectation that such materials would be disclosed.

(8) That in deciding not to follow the path of voluntary co-operation and, instead, to appoint an Investigation Committee, the respondent took into account irrelevant factors, namely, client confidentiality, as well as the suggested danger of discovery in subsequent civil proceedings.

THE RIGHT TO SEE MATERIALS AND TO MAKE REPRESENTATIONS

(1) The applicants' case

38. The contention on behalf of the applicants is that fairness, in the context of this case, required that before the respondent decided to appoint an Investigation Committee, it ought to have informed the applicants that it was minded to do so, and of the information which it had in its possession and upon which it was or may be so minded; and it ought to have done so to enable the applicants to respond to show why such basis as the Council might think it had to suspect that the applicants were in breach of a provision or provisions of section 34 of the Ordinance, was a basis that was fallacious.

39. Mr McCoy starts from the proposition that where a statute confers upon a public body a power which, in its exercise, is likely to affect the reputation or financial interests of a person, it is, in the absence of clear contrary intention, presumed that the rules of nature justice apply; that it is not the character of the particular power upon which one is to concentrate when deciding what fairness demands, but rather the power and its effect upon which the focus must lie.

40. In Annetts v. McCann [1990] 170 CLR 596, 598, it was said that :

"It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment: ..."

41. So, too, it was said in Rees v. Crane [1994] 2 AC 173, 192, that although where an act in a sequence of measures which may culminate in a decision detrimental to a person's interests, will, generally, not give rise to a right to be heard at the initial stage, that is not necessarily so in all cases, and that :

"... silence on procedures in the absence of other factors indicates, or at least leaves open the possibility, that there may be well be circumstances in which fairness requires that the party whose case is to be referred should be told and given a chance to comment. ..."

42. Mr McCoy relies also on that part of the speech of Lord Mustill in R v. Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531, 560, where it was said that :

"... where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. ..."

43. Mr McCoy accepts that the duty of fairness is not a concept that can be applied rigidly - its existence and application must depend upon the statutory and factual context. One of the factors to take into account, he rightly says, is :

"... the importance of the decision to the individual ... affected. The more important the decision is to the lives of those affected and the greater its impact on that person ... the more stringent the procedural protection that will be mandated."

(see Baker v. Minister of Citizenship and Immigration (1999) 174 DLR 193, 212).

44. He relies much on Rees v. Crane for its decision that a right to be heard at a preliminary stage might well be required where the context so demands. He points to the cases there cited in which such a right was held not to exist at an initial stage, and suggests that they show that a negative view will only be taken where the exigencies of a situation show that it is inexpedient for the right to be afforded; for example, where there is a need for urgency or where there is an administrative necessity :

"It is clear from the English and Commonwealth decisions which have been cited that there are many situations in which natural justice does not require that a person must be told of the complaints made against him and given a chance to answer them at the particular stage in question. Essential features leading the courts to this conclusion have included the fact that the investigation is purely preliminary, that there will be a full chance adequately to deal with the complaints later, that the making of the inquiry without observing the audi alteram partem maxim is justified by urgency or administrative necessity, that no penalty or serious damage to reputation is inflicted by proceeding to the next stage without such preliminary notice, that the statutory scheme properly construed excludes such a right to know and to reply at the earlier stage." (p.191)

45. Mr McCoy emphasises also that : "It has long been accepted that reputation is an interest attracting the protection of the rules of natural justice"; and that that clearly extends to business or commercial reputation (see Ainsworth and Another v. Criminal Justice Commission (1992) 175 CLR 564).

46. In Doody, Lord Mustill (at page 560) summarised the principles thus :

" What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."

47. The intuitive judgment to which Lord Mustill referred, should, says Mr McCoy, drive one to the conclusion that it cannot have been intended in this case that the Investigation Committee was to be established without first giving the applicants a chance to be heard in opposition to the proposal, and that that could not fairly be done without telling them upon what information the issue was to be considered. This was no minor complaint. This was, he says, a huge case, the tackling of which in response to an Investigation Committee's work would require devotion of enormous resources, the cost of which was not recoverable, whichever way the Investigation Committee decided; an investigation which, says Mr McCoy, would require the applicants to tell certain clients that they could no longer act for them; and the reputation of the firm would, he adds, inevitably be affected because this was no mere initiating procedure - it was one predicated on the basis that it had been decided that there was reasonable cause to suspect professional misconduct or negligence by the firm. Secrecy provisions would not help because, if the firm had to cease acting for clients, it would have to tell them why. Nor was there any urgency involved or administrative necessity which dictated that an Investigation Committee had to be established at once. Indeed, two months had passed between the meeting of the Council in early March, when it met to consider the report of 28 February 1999, and the decision in early May to appoint the Committee. It would not have harmed anyone to wait the short while that it would have taken for a response by the applicants. Indeed, the respondent had said in March that it would contact the applicants again, but it never did.

(2) Analysis

48. I am entirely unpersuaded that either the scheme of Part VA of the Ordinance or the facts of this case - and I omit for the moment the question of legitimate expectation based upon suggested past practice - required the respondent to place before the applicants, prior to 4 May 1999, copies of materials which had been placed before the Council, to enable the applicants to comment on these materials before a decision was taken whether or not to constitute an Investigation Committee.

49. The stage at which it is said by the applicants that the right to be given adverse material, and to be heard, arises, is but an initiating stage. Whilst that is not conclusive of the matter (Rees v. Crane), it is a salient consideration; particularly so when one appreciates the fact that the Council is not empowered to and does not even purport to make a finding of a prima facie case. That is one of the cardinal facts that distinguishes this case from every one of the others upon which Mr McCoy relies, and I include in that comment the case of Rees v. Crane.

Rees v. Crane

50. Mr McCoy has relied much upon Rees v. Crane, pointing to the fact that in that case the Privy Council held that there had been a duty to inform the applicant of allegations against him at an early stage, even though the right to make representations would clearly have presented itself later. Rees v. Crane was also much relied upon by the applicants in Ernst & Young v. The Hong Kong Society of Accountants, HCAL139/1999, a case in which I delivered judgment in March 2000.

51. Given the approach to Rees v. Crane by counsel for the applicants in both these cases, and the encouragement which their reading of that judgment appears to be giving applicants in challenging the exercise of powers conferred by section 42C of the Ordinance, I must, I believe, now say something more about that decision.

52. In so far as the judgment in Rees v. Crane makes the point that there is no absolute rule to the effect that the right to be heard does not generally apply at an initiating stage, especially where there is such a right later, the judgment is useful to those in the position of the applicants. So, too, in so far as the judgment points to factors to be taken into account in deciding whether circumstances require a decision-maker first to proffer an affected party an opportunity to make representations, it is helpful. But I rather think that counsel for the applicants in both cases have tried to draw from the case more than that. They have sought to suggest that the decision of the Commission in the Rees case was analogous to the decision to constitute an Investigation Committee under Section 42C of the Ordinance. Mr McCoy said as much in the course of his argument : "It was a decision just like this one, to investigate"; and there was also much in his argument that carried with it the flavour of a contention that Rees v. Crane evidenced a new trend.

53. I did not make the point in Ernst & Young, and I think it important to make the point now : in my judgment, there are distinctions between the factual matrices of Rees v. Crane, and the nature of the decision which the Commission was there making, on the one hand, and, on the other, the decision of a Council under section 42C of the Professional Accountants Ordinance to constitute an Investigation Committee, which distinctions are fundamental for the purpose of an argument about natural justice. And I am further of the opinion that Rees v. Crane does not evidence some new trend or some departure from an earlier approach.

54. Rees v. Crane involved a decision, in relation to a judge, which was described by both counsel for the judge, as well as by the Privy Council, as a decision to recommend a judge's impeachment. It involved the making of that which was referred to by the Privy Council as charges; indeed, serious charges. It required a finding of a prima facie case. Once the Commission made its representation, the law required that a tribunal be established, and the very fact of the establishment of a tribunal empowered the Chief Justice to suspend the judge. That tribunal sat in public. The charges concerned highly personal and sensitive allegations of illness and incapacity which, so thought their Lordships, "might have been dealt with briefly and conclusively".

55. The function of the Council under section 42C is altogether different. It proffers no charge. It does not even make any finding of a prima facie case. The body tasked by it to make an investigation does not hold its investigation in public. In the execution of its function, the investigating body is bound by statutory obligations of secrecy. The referral of a case to an Investigation Committee carries with it no certainty at all that there will be disciplinary proceedings in the future. There may or may not be. Nor, in cases such as the present, is the nature of the concern one that is normally susceptible to be dealt with briefly and conclusively by a simple response. No doubt there are other distinctions that can be made, but these suffice.

Other cases

56. Other cases cited by Mr McCoy - and I shall not refer to them all - though pertinent on questions of principle, were distinct on the facts. Annetts v. McCann was a decision by the High Court of Australia that a coroner, before making his finding, ought to have afforded to the parents of a deceased youth a right to be heard in opposition to any potential adverse finding in relation to themselves or their son. I would emphasise the word "finding" - in that case, as to how, when and where the deceased came upon their deaths - and distinguish it from a mere decision to hold an inquiry. Where that court stated that it was to be taken as settled that the rules of natural justice regulate the exercise of a power conferred by statute where the power was "to destroy, defeat or prejudice a person's rights, interests or legitimate expectation", that was not a suggestion that the rules of nature justice were inevitably to be invoked prior to the initiation of an investigation merely because the fact of an investigation would cause expense and inconvenience and might, even if unreasonably, lead some to assume that there was no smoke without fire. I do not see that judgment, or the passage cited, as cutting across or derogating from the principle that, generally, and where there is an entitlement to be heard at a later stage, those subject to an initiating investigation are not entitled to be heard in opposition to the proposal to start the investigation. Where their lordships referred in Annetts v. McCann to "prejudice", they must, I apprehend, have had in mind prejudice occasioned by a determination or finding of fact. The word is used by the court in conjunction with the words "destroy and defeat", and it could not in my judgment have been intended to embrace, in all circumstances, that air of curiosity, and questions, that accompany knowledge of the fact that a preliminary investigation is afoot; or the premature whispering that tends to be the preserve of the ill informed - whispering, incidentally, if it is to take place at all, which is likely to take root whenever there are public announcements such as those of February and March 1999, well before any decision to set up an investigation.

57. In Ainsworth, the mere fact that the function of the Criminal Justice Commission was one capable of being labelled an inquiry did not, in the circumstances of that case, absolve the Commission from its duty of fairness. But, again, the nature of the decision and the stage at which it was taken, were factors radically different from those in this case : the Commission had conducted inquiries, had come to conclusions adverse to the character of the appellants, and had recommended that they should not be permitted to participate in the gaming machine industry in Queensland; and that recommendation was the final step in the discharge of the Commission's statutory function. It was certainly more than a mere initiating step in a multi-stepped process by a body that might, or might not, at the end of that process by that body, alter the rights or interests of a party and :

"It is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if the 'decision-making process, viewed in its entirety, entails procedural fairness'." (emphasis added) (per Mason CJ at page 578)

This case

58. It is by examination of the statutory scheme and the stages which it encompasses, that we see in this case where the decision-making process, viewed in its entirety, entitles accountants to make their representations and, more pertinently, the stage or stages at which no such requirement could have been within the legislature's contemplation or could, within the framework of common law principles, be considered sensible.

59. One might begin by recognising that the appointment of an Investigation Committee does not even entail the making of a complaint against the firm or individual accountant. That that is so is evident from the very terms of section 42C. There can be advanced, in my judgment, no reasonable suggestion that the professional accountant has a right to be heard in opposition to a proposal to lay a complaint. And, if that is correct, it is difficult to understand why should he nonetheless garner a right to oppose a step that is preliminary to a complaint.

60. The applicants would have this court hold that the stage at which they were entitled to materials and the right to make representations - and, as we shall shortly see, to be advised of reasons for any decision then made to appoint an Investigation Committee - is the very first stage of a multi-staged process. As soon as the Investigation Committee has been appointed and is permitted to get on with its work, those in the position of the applicants would no doubt meet, on one or on many occasions, with members of the Investigation Committee, to discuss the concerns of the Committee, to answer its questions, to pore over working papers, and to study allegations. There can be little doubt but that, in reality, in a case of the present kind, the professional accountant will know the case against him - if there is a case against him - well before any decision is made that there is a prima facie case, and will be given full opportunity to show, if he can, that there is not such a case. And it is worth noting in this case that the applicants were hardly entirely in the dark even at this very preliminary stage. They had seen the public announcements. They knew, certainly in broad terms, what the concern was; and they had seen the detailed submissions of KPMG to the Stock Exchange dated 22 March. And they knew very well that the Council was considering appointing an Investigation Committee. I see in the evidence no suggestion by the applicants at the time that they should be given an opportunity, before the Council made its decision, to respond in full to the materials before the Council; nor any complaint immediately after the appointment of the Investigation Committee that they had not been given that opportunity. Their prime concern at the time was about publicity. And whilst it is not conclusive of the issue of law, the fact that no such requests were made, and no complaint advanced shortly after the appointment of the Investigation Committee, may be indicative of the fairness of the matter. The applicants knew full well that the time for making substantive and informed representations in respect of which further questions could be raised, and documents examined, was the stage of the Investigation Committee's investigation itself.

61. An investigation, and even a finding of a prima facie case, does not complete the respondent's statutory process. In the event of such a finding, there then comes a decision whether to refer the matter to a Disciplinary Committee, and if a decision is made to make such a referral, the Disciplinary Committee is then charged by section 35 with the duty to ascertain whether the complaint is proved and, of course, before there can lawfully be such a finding, the professional accountant must be heard and provided with all relevant information. Every case is different, and it is not wise to suggest that the statute has a standard procedural formula in mind for all cases, and all stages. But what I do say is that the multi-staged process which I have described, viewed in its entirety, envisages and permits procedural fairness without a requirement, on facts of or similar to those in the present case, that before this initiating stage, materials before the Council be provided to the professional accountant to enable him to seek to persuade the Council not to appoint an Investigation Committee; or indeed that the accountant has otherwise at this stage to be given an opportunity to make representations. I am satisfied in this case that the applicants had no entitlement to be heard in opposition to the proposal to appoint the Investigation Committee, or, in advance of that appointment, to be told of (or to see), so that they could comment on them, the materials before the Committee in respect of, or upon which, the proposal was made.

62. It is said that the appointment of an Investigation Committee entails a slight upon the reputation of the accountant, as well as the deployment of resources, without the advantage of any provision enabling it to recover its costs. But surely one does not assume that if there is no Investigation Committee, resources are not deployed and questions in the public mind are not raised. So, for example, in this case, the allegation in the public announcement of 2 March 1999 that a substantial part of the provisions made in the accounts for the nine month period ended 30 September 1998 should have been made in the period ended 31 December 1997, with the notes suggesting, inter alia, that KPMG had found no reliable independent third party documentation to prove the authenticity of certain third party transactions, were not going to go away. These were allegations already in the public domain, press reports as early as January 1999 mentioning concern about the level of auditing, and it is idle to suppose that it was not known who the auditors were. And it is also idle to suppose that the respondent would do anything other than investigate the conduct of the audit, whether on a voluntary basis or on a statutory footing. And even if on a purely voluntary basis, the applicants were going to have to expend time and resources in answering questions, and producing documents, and getting in touch with clients. They were already doing so in writing to, and answering questions by, the Stock Exchange of Hong Kong.

THE RIGHT TO MATERIALS: LEGITIMATE EXPECTATION

63. The applicants say that the respondent was obliged to deliver to them copies of the material "which had instigated the process which could lead to the formation of an [Investigation Committee]", and insofar as this rests on some suggested statutory or common law duty of fairness, divorced from any question of legitimate expectation, I reject the contention for the reasons I have already canvassed. But, by amendment to the notice of application, legitimate expectation has come into the picture. The legitimate expectation is said to arise from past conduct on the part of the respondent in relation to the applicants. This was a proposition raised for the first time shortly before commencement of the hearing of this application. In an affidavit sworn on 16 March 2000, Mr McKelvie, a partner in the applicant firm, said that :

"Prior to the Guangnan matter ... there were two matters raised by the HKSA with the applicants. In each case, the HKSA delivered to the applicants at the outset for comment documentary materials containing full details of the complaint made against the applicants. Following the Guangnan matter, two further matters have been raised. In one, the HKSA delivered documentary materials to the applicants for comment as usual. In the other ... the HKSA did not. .... That matter has been referred to judicial review."

The respondent has failed in this case to follow that prior procedure, it is said, and has thereby "confounded the legitimate expectation held by the applicants", and has done so "unlawfully and capriciously." (Notice of application paras.40.3 - 40.7)).

64. No details of those prior cases, or of the circumstances in which material was previously given, were provided by the applicants. But I now have the details of the cases from evidence filed by the respondent. In none was an Investigation Committee appointed. In the first case, the respondent requested the PSMC to inquire in order to ascertain whether an audit had been conducted in accordance with professional standards. According to this evidence, only after that request was made did the body write to the applicants to seek their account; and in the second case - and the applicants can only rely on two, because there were only two involving the applicants before May 1999 - a complaint was received by the respondent which was referred to the Department of Professional Conduct, and that department wrote to the applicants inviting their comments before any decision was taken whether to refer the complaint to a Disciplinary Committee under Part V of the Ordinance.

65. The onus of proving the existence of a legitimate expectation, whether arising from a promise or from a suggested established practice, is upon an applicant. The applicants have not in this case discharged that onus. There are but two prior instances prayed in aid, each no doubt turning on their own facts; and the course taken in each was different, one from the other, and from the course taken in this case. But, in any event, it is not demonstrated to me that whenever, prior to May 1999, a cause for concern was drawn to the respondent's attention, materials were provided to the applicants prior to any decision taken by the respondent to refer the matter to a panel or committee for preliminary investigation. It might be said, and with some force, that the failure of the respondent to follow up the letter to the applicants of 8 March 1999 with a request for comments before a decision was made was discourteous, and an odd omission, which has not been explained. Yet that is not to say that there was a duty to do so; or a duty to provide the KPMG report, for example, to the applicants (which in any event would have been difficult for the respondent to do, given the basis upon which it was furnished to the respondent).

66. The applicants were not of course unaware of the case "against" them, or of the fact that the Council were about to consider the course to be adopted, that is, whether to appoint an Investigation Committee or, to take an informal investigating route. There is no suggestion in any evidence presented to this court that, despite this knowledge, the applicants were calling for the information in the hands of the respondent, and no suggestion made to the respondent before the decision of 4 May that, by reason of prior practice, the applicants expected to have materials presented to them before any investigation was set in motion. It could not be an answer that the applicants were taken by surprise, for the applicants were on 4 May aware of the fact that that very day a decision was to be made. And it is noteworthy that after the decision was made, there was no hint of a complaint that prior practice had not been followed. In the circumstances of this particular case, that history militates significantly against the suggestion of a settled practice giving rise to a legitimate expectation of the type for which the applicants contend.

REASONS FOR THE DECISION

67. The applicants argue that the respondent should, once it had made its decision to appoint the Committee, have given reasons for that decision. Mr McCoy refers to authorities that speak of the benefits of giving reasons, benefits which he says applied in this case. Such benefits are referred to by the Court of Final Appeal in Oriental Daily Publisher Ltd v. The Commissioner for Television and Entertainment Licensing Authority [1998] 2 HKLRD 857, 867 :

" First, it would impose desirable intellectual discipline and concentrate attention on the relevant issues. It would thus assist in ensuring that any decision is made on proper grounds and contribute to the effective disposal by the tribunal of its work. Secondly, reasons would assist in demonstrating to the parties that the tribunal has carried out its task properly and would enable them to decide on the appropriate course of action in the case at hand, including whether to appeal or apply for judicial review. It would also provide guidance in the future to the community and persons concerned in this area. Publishers as well as the law enforcement and prosecuting authorities would have a better understanding of the standards as applied by the tribunal and would be in a better position to make their own decisions accordingly. Thirdly, the reasons given by the tribunal will promote and enhance consistency in its decision making and assist the law enforcement and prosecuting authorities. I would observe that broad consistency in approach is important. Fourthly, the giving of reasons would demonstrate to the community that the tribunal is functioning properly and this would engender public confidence."

68. So, too, in the case of a decision to appoint an Investigation Committee, it would enhance confidence, it is argued, in the members of the profession if they could see the reasons given for the decision of the Council. And it is said that the giving of reasons would :

"[strengthen] the process itself, in increasing the public confidence in it, and in the desirability of the disclosure of error where error exists."

(see Marta Stefan v. General Medical Council [1999] 1 WLR 1293, 1300).

69. Mr McCoy then adds a suggestion, which he draws from Stefan, that the provision of reasons for a decision is important as an effective means of detecting a kind of error which would enable a court to intervene through the mechanism of judicial review. In this case, he says, the respondent failed to say why it had decided that there was a reasonable suspicion or belief that any of the relevant sub-sections of section 34 were relevant to the applicant's conduct or work, and why it decided that the respondent would require more than the voluntary co-operation of the applicant, and "that by refusing to give reasons, the [respondent] unfairly and unlawfully deprived the applicants of the opportunity to satisfy itself that the [respondent], the decision-maker, was acting unlawfully".

A suggested trend

70. In Tong Pon-wah v. Hong Kong Society of Accountants [1998] 3 HKC 82, a complaint had been made against an accountant and considered by the Disciplinary Committee, and that Committee found the complaint proved, and the accountant was reprimanded. On appeal to the Court of Appeal, counsel for the accountant argued that the accountant ought to have been given reasons for that decision. The Court of Appeal did not agree. Godfrey JA, as he then was, said, at p.94 :

" I do not wish to suggest that a professional body armed with disciplinary powers can never be under an obligation to give reasons for its decisions. It may indeed sometimes be the case that justice cannot be done to the person charged with a disciplinary offence unless he is given reasons for the decision against him. If, for example, he has a right of appeal against the exercise of a discretion, fairness may dictate that he be told why the discretion has been exercised against him, so that he and the appellate tribunal can see whether the discretion has been properly exercised. But I am quite satisfied that, in the present case, Mr Tong was perfectly able to understand what was alleged against him and was given every opportunity to deal with it. That being so, the Disciplinary Committee was under no obligation to do any more than to find the charge against him proved, as it did."

71. In Dr Ip Kay Lo Vincent v. Medical Council of Hong Kong [1998] 4 HKC 257, disciplinary charges were brought against a medical practitioner. There was an enquiry. A defence was put forward at that enquiry. The Council found one of the charges proved. The practitioner was removed from the Register for three months. One of the several grounds of appeal was that the Council did not provide reasons for its finding of fact. The Court of Appeal there said that under the common law there is, generally, no obligation imposed on tribunals to give reasons for administrative decisions, though the circumstances of a case may imply a duty to give reasons, and it was held that the way in which that case was prosecuted and the way in which the Council reached its findings of fact were such that a reasoned decision was quite obviously called for. Rogers JA said, at p.270, that in recent times there has in such cases been a gradual move to the requirement of reasons, though the requirement is never onerous.

72. In Re a Solicitor [1999] 4 HKC 455, a solicitor in Hong Kong was condemned by the solicitor's Disciplinary Tribunal on a number of complaints and suspended from practice for six months. There was before the Court the Appeal a complaint that reasons for the orders made were not given. The Court of Appeal said that, historically, it had not been the practice of Disciplinary Tribunal to give reasons for its decisions, but commented that :

"In recent years there has been a steady change in judicial attitude towards the giving of reasons by bodies which are required to act fairly."

73. It is this trend, referred to by Rogers JA in the Dr Ip case, and by Keith JA in the Solicitor case, on to which Mr McCoy latches; a trend also mentioned in the Oriental Daily case.

74. The high water mark of the sea change is, says Mr McCoy, to be found in Marta Stefan. That was a case in which a doctor had, periodically, been subject to suspension of her registration because the Health Committee of the General Medical Council had decided that her fitness to practise was impaired and, finally, that Committee decided that her registration should be suspended indefinitely. All that the Committee said by way of reasons was that it was deeply concerned about the doctor's medical condition and had judged her fitness to practise to be seriously impaired. The Privy Council held that whilst no obligation to give reasons was imposed, expressly or impliedly, upon the Committee by the statute, there was in view of the judicial character of the Committee's function and the framework in which it operated, a common law obligation to provide a short statement of reasons. There, the Privy Council referred to the trend towards an increased recognition of the duty on decision-makers of many kinds to give reasons, adding however (at page 1300) that :

"... the trend is proceeding on a case by case basis .... and has not lost sight of the established position of the common law that there is no general duty universally imposed on all the decision-makers. .... that the law does not at present recognise a general duty to give reasons for administrative decisions. But it is well established that there are exceptions where the giving of reasons will be required as a matter of fairness and openness."

75. The argument of Mr McCoy is one that presses the advantages of openness described in Stefan and in Oriental Daily, and he asks this court to embrace the trend to which all these cases refer.

76. But, beyond that, Mr McCoy says that there emerges from Stefan, in particular, a recognition that the fact that a decision is susceptible to judicial review has now become a strong pointer to a requirement that the decision-maker should give reasons for the decision. He draws that contention from the following passage (at page 1299) of that judgment :

"In Cunningham's case, although there was no provision for appeal from the decision of the body in question it was susceptible to judicial review, and that appears to have been a factor pointing to the conclusion that reasons were required. In Reg. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 A.C. 531, 565, Lord Mustill regarded it as necessary for reasons to be disclosed where it was important for there to be an effective means of detecting the kind of error which would enable the court to intervene by way of judicial review."

The distinction

77. If there is a single fact which stands out beyond all others upon a comparison of these cases, on the one hand, and the decision under challenge in this application for judicial review, on the other, it is that each and every cited case concerned a final determination. What was at stake in each case was the immediate right of the practitioner by reason of the decision made, to continue in practice - let alone any question of reputation. In each case the decision under challenge, in respect of which it was argued and sometimes held that reasons should be given, was a decision that a professional complaint (actual or, in the case of Dr Stefan, implied) had been made out. There was no question in any one of those cases of the decision-maker having to refer the case further for determination; or of the decision-maker deciding only whether there was a prima facie case; or of the decision-maker deciding only whether there ought to be an investigation to see whether there was a prima facie case which might lead to a complaint, which might lead to an inquiry by a Disciplinary Committee, which might lead, after hearing the defence of the professional party affected, to a final determination.

78. The applicants' argument simply does not compare like with like; not even remotely so.

The Stefan argument : analysis

79. The suggestion that because the decision of the Council is susceptible to judicial review, reasons should be given, is a contention which is far too broad. It is a contention which would have the courts ignore statutory and factual context and, far from engendering public confidence in proactive self-regulation, would bring the operation of the Ordinance into rapid disrepute. Consider for a moment the decisions which, under Part VA of the Ordinance, the applicant would say are susceptible to judicial review : the decision to ask an Investigation Committee to investigate; the Investigation Committee's decision that there is a prima facie case; the Council's decision to refer a matter to the Disciplinary Committee; and the Disciplinary Committee's decision in relation to the matter thus referred. I cannot imagine that it could ever have been intended that at every stage of this multi-staged process available under the Ordinance, reasons would have to be given, so that a professional accountant could scrutinize these reasons to see if there was ground, at each stage, to challenge the particular decision.

80. Nor do I accept Mr McCoy's contention that there is to be culled from Stefan a new dimension in the approach to the question of natural justice, which is that the fact that a decision is susceptible to judicial review "... now is a strong pointer to the requirement that reasons be given." As with all citations, the passage from which Mr McCoy seeks to draw this principle, is one whose true meaning and impact can only be deduced from its context. That passage refers to two cases, Cunningham and Doody, in which the courts were impressed by the fact that, absent an adequate statement of reasons given by the decision-maker - either reasons to the party in respect of whom the decision was taken, or reasons given to the court upon the application for judicial review - the party adversely affected was left disabled from any possibility of remedy against a final determination. But that is not to say that reasons must be given merely because, and every time, a decision is amenable to review, regardless of the character of the body making the decision, regardless of the statutory framework within which that decision is taken, and regardless of the nature of the decision. These aspects - the character of the decision-making body, the kind of decision it has to make, the statutory framework in which it operates - are vital considerations in assessing what fairness demands in each case; which is, in essence, the point made by Lord Bridge in Lloyd v. McMahon [1987] 1 AC 625, 702-3, applied in R. v. Civil Service Appeal Board, ex parte Cunningham [1991] 4 All ER 310. And Cunningham was one of the two cases referred to in the passage from Stefan on which Mr McCoy relies. It is noteworthy that the Civil Service Appeal Board (which refused to provide to the applicant any explanation as to how a sum awarded to him, after he was dismissed from his post as a prison officer, had been calculated) was carrying out a judicial function from which there was no appeal, and the Board did not even explain to the court how it had reached its determination. Small wonder, one might say, that the Court of Appeal sensed unfairness in such an approach. Lord Donaldson MR (at page 317) referred to three possible bases for holding that the Board should have given reasons for the award :

"The first is that there is a general rule of common law or, if that be different, a principle of natural justice that a public law authority should always, or usually, give reasons for its decisions. .... Suffice it to say that the proposition is unarguable and it was not argued in this court."

Yet, if Mr McCoy is right, that a decision's amenability to judicial review of itself takes one to the threshold of requiring reasons for decisions, then the proposition which Lord Donaldson in Cunningham labelled as unarguable becomes one that is eminently arguable. McCowan LJ, at page 321, referred to Wiseman v. Borneman [1971] AC 297 and in particular, to Lord Reid's statement, at p.308 that :

"...Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances, and I would be sorry to see this fundamental general principle degenerate to a series of hard-and-fast rules. For a long time the courts have, without objection from Parliament, supplemented procedure laid down in legislation where they have found that to be necessary for this purpose. But before this unusual kind of power is exercised it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation."

And he cited also Lord Wilberforce's injunction in the same case (Wiseman v. Borneman, p.317) that : "It is necessary to look at the procedure in its setting." And that is the key difference between Cunningham and Doody, on the one hand, and the present case, on the other : setting.

81. In Doody, the House of Lords was concerned with a decision - not a decision to inquire or investigate, but a final decision - by the Secretary of State which determined the date upon which certain prisoners might be released on licence. It was held that the Secretary of State was required to tell prisoners the periods recommended by the judiciary in their cases as the period that should be served, and to afford each prisoner an opportunity to make representations. But for such information, the prisoner was stuck with a final decision affecting his liberty, from which there was no appeal, and against which there was no recourse.

82. So Stefan, in its reference to Cunningham and Doody, and the importance of reasons so that a person might seek the remedy of judicial review, or so that a court might upon such a review itself examine reasons, was immersed in a particular setting far removed from the setting of this case; a fact made clear in the judgment in Stefan itself where, having reaffirmed the principle that "the law does not at present recognise a general duty to give reasons for administrative decisions" (page 1300), their lordships referred to exceptions, including classes of cases, where a duty to give reasons exists :

"Those classes may be defined by factors relating to the particular character or quality of the decisions, as where they appear aberrant, or to factors relating to the particular character or particular jurisdiction of a decision-making body, as where it is concerned with matters of special importance, such as personal liberty."

83. The judgment in Stefan cited, without any criticism, the case of Reg. v. Higher Education Funding Council, Ex parte Institute of Dental Surgery [1994] 1 All ER 651. That decision, which was delivered later in time than Doody and Cunningham, and which refers to both, is interesting for present purposes, for there was advanced on behalf of the applicants an argument which has found a strong echo in the arguments of Mr McCoy :

" The first limb of Mr Pannick's submission is accordingly that the decision of the respondent was of a kind for which fairness requires that reasons be given. His written contention is that this will be the case -

' when the relevant decision has important consequences for the individual or body concerned, especially if the absence of reasons makes it very difficult for the applicant and the court to know whether the respondent has acted by reference to irrelevant factors, and especially if there is no justification for withholding reasons.'

In our view, this formula will not do. The absence of reasons always makes it difficult to know whether there has been an error of approach. The question of justification for withholding reasons logically comes after the establishment of a prima facie duty to give them. Neither can therefore add to the principal ground advanced, which is of such width that it would make a duty to give reasons a universal rule to which the only exception would be cases of no importance to anybody. There are certainly good arguments of public law and of public administration in favour of such a rule, but it is axiomatically not, or not yet, part of our law. It remains to be seen what the 'continuing momentum in administrative law towards openness of decision-making' (per Lord Mustill in Doody's case ....) will bring."

84. And the decision is the more pertinent for its analysis of the very passage from Lord Mustill's judgment in Doody, referred to in that part of Stefan which is the core of Mr McCoy's submissions on this point :

" We readily accept Mr Beloff's submission that Lord Mustill was not holding .... that reasons are called for wherever it is desired to know whether grounds for challenge exist; for to do so would be to create just such a general duty as Lord Mustill at the start of the passage was careful to exclude. Rather he was holding that, in the situation of near total ignorance and impotence in which the prisoner found himself about something as vital to him as his prospects of liberty, such a duty arose." (per Sedley J at p.665)

85. If I ask, following the considerations suggested in Lloyd v. McMahon, what kind of decision the Council was making and within what statutory framework, the answer is that it was a decision that did not determine culpability, that did not, properly viewed, affect the status or ability to practice of the applicants, and was but the very first stage of a multi-staged process during the later stages of which those under investigation would have full opportunity of understanding concerns and allegations - if they did not already understand them - and of answering them.

86. I am satisfied that Stefan is not authority for the proposition that Mr McCoy advances, and that there fell upon the Council no duty to give to the applicants reasons for the decision it took to appoint an Investigation Committee.

87. The complaint is, in any event, in my judgment, somewhat odd, for the applicants must have known very well why this case was referred to the Investigation Committee. The media was gushing stories about the Guangnan collapse, and financial misstatements; the applicants had closely followed the publicity; knew full well that the respondent was considering the appointment of an Investigation Committee, and knew full well upon which audit concern was concentrated; the applicants had in their possession the KPMG report to the Stock Exchange; and they made no request immediately after the appointment of the Investigation Committee for reasons for the Council's decision.

REASONABLE SUSPICION AND BELIEF

88. The notice of application contends that there was no basis upon which the respondent could reasonably have arrived at a reasonable suspicion or belief that the applicants were in default of their duties in one or more of the ways stipulated by section 34(1) of the Ordinance. The Council came to its conclusion solely in reliance on the work of another firm of accountants, KPMG, work which the applicants say they could demonstrate as being flawed to such an extent that the Council could not have formed the basis of a reasonable suspicion or belief.

89. This, in my judgment, is to misunderstand, again, the nature of the decision required under section 42C(2) and the statutory framework. Where a decision-making body is provided with information by a respectable professional firm which, on its face, suggests that there were accounting errors and that those errors ought to have been detected upon audit, how can it reasonably be argued that that does not suffice to give rise to a reasonable suspicion of, say, negligence? It is not a finding that there was negligence, and it is not even a finding of a prima facie case of negligence. It is a mere suspicion; yet not one drawn from thin air, based upon some whispering campaign, or from a patently unreliable source. I do not intend to rehearse again the contents of the public announcements - they were detailed, and certainly sufficed to cause concern on the part of regulatory authorities; and the Council had also the fairly detailed submissions of KPMG, as well as the analysis of the Registrar in the memorandum dated 30 April 1999, stating precisely the basis of concern about the audit. I see nothing irrational in that analysis, or unreasonable in the concern about the standard of care of the auditors implicit in that analysis.

90. Mr McCoy adds that there was no discussion during the meeting of 4 May about the KPMG report; nothing to show that the reasonable suspicion test was met. That submission is, in my judgment, not supported by the realities of the case. Council members were sent the relevant documents in advance of the meeting. Those documents included a letter from the Stock Exchange dated 8 March 1999, raising the key question, which was no doubt the same question as any regulatory authority, informed investor, or professional accountant would at least raise, which was "why the significant misstatements in the 1997 Financial Statement were not detected". And the documents also included the report by KPMG, and a copy of section 42C of the Ordinance which refers to the reasonable suspicion or belief threshold. The memorandum to members dated 30 April 1999 told the members that :

"Council would need to consider whether the information presently available to Council who give grounds to a 'reasonable suspicion' under section 42C (2)(a) of the PAO....."

The manuscript notes taken at the meeting, notes upon which Mr McCoy much relies for other purposes, evidences one member of the Council referring to a "prima facie case for doing an investigation", and another to "sufficient ground for [the] Society to appoint [an investigation committee]."

91. It seems to me that in the circumstances which presented themselves, and given the professional qualifications of the members of the Council, and the history of the case prior to the meeting, a discussion of the ins and outs of the KPMG report would, for the purpose of deciding the initial question of reasonable suspicion, have carried all the hallmarks of artificiality. Everyone at that meeting must have known the history of the matter, the source of the concern, and the question mark to which the basic facts gave rise. In the absence of glaring error or patent unreliability, the Council was quite entitled to rely solely - if that is what it did - on the KPMG report. Detailed investigation and examination of criticisms of the KPMG report was for the next stage.

LEGITIMATE EXPECTATION : ALLEGED BREACH OF POLICY

92. The notice of application, as originally cast, referred to a legitimate expectation said to arise from a policy published by the respondent in 1995 which, in so far as is relevant to this case, stated that :

"Council shall not appoint an Investigation Committee -

(a) unless the Council is of the view that in order to conclude the matter more satisfactorily, it will require more than the voluntary co-operation of the members concerned; ...."

It is said that the Council has, in appointing the Investigation Committee in this case, breached that policy, and in doing so, has confounded the legitimate expectation of the applicants that the voluntary route would be adopted. As is evident from the minutes of 4 May 1999, Mr Best, on behalf of the applicants, confirmed that the applicants were offering to co-operate.

93. Given my judgment in Ernst & Young in which I addressed this policy and its application, in some detail and in a factual context not dissimilar to the present, Mr McCoy has not advanced argument in support of this limb of the applicants' case but, quite understandably, has not abandoned the point and preserves it for argument in another place should this application for judicial review go against the applicant. Since the ground of complaint remains alive, I must, I think, say something about it.

94. Nothing in this case moves me from the conclusion to which I came in the Ernst & Young case about the proper interpretation of the policy, and in particular from the conclusion that the policy did not envisage that in every case the Council would first travel the voluntary route. What I said was this :

"What was envisaged was that there would be cases in which a question or issue was, by its nature, readily amenable to effective and expeditious resolution by an informal process - and it is all too easy to forget, when deeply immersed in the facts of the particular case, that the range of circumstances that might trigger an inquiry into possible professional default encompasses a very broad spectrum, from the very simple to the very complex. So, on the other hand, there would be cases in which a question or issue would self-evidently not be amenable to effective and suitably expeditious resolution by the informal route. And there would be cases that came before the Council which bore all the hallmarks of a rocky and difficult road. In such cases, even where the Council could not with certainty say how the twists and turns of an investigation might reveal and resolve themselves, the Council might quite reasonably say that it did not believe that an investigation would (even assuming goodwill by the accountants) progress satisfactorily - that is, with the speed or efficiency demanded by the circumstances - unless the formal route were taken. The phrase 'in order to conclude the matter satisfactorily' does not in my judgment mean 'so that at the end of the day - no matter how long it takes - we will get the answer'. It refers to the satisfactory conduct and resolution of the inquiry at hand, and satisfactory conduct includes such actual and perceived progress as is necessary in the particular context. Faced with the decision whether to appoint an Investigation Committee or to go the voluntary road, the Council is necessarily looking to the future and may well be possessed of not a great deal of information. It must then do the best it honestly can. Based on its collective professional experience and taking into account the history of investigations in similar cases, it should be able to assess, without too much ado, the kind of problems that are likely to arise. If such a Council reasonably takes the stance that the case is one that must progress with all due expedition and with such certainty of progress as can reasonably be expected in such a case, the Council then asks itself what it is that is necessary to achieve that aim. If it then sees that the voluntary highway is littered with the real likelihood of difficulties and unnecessary delays, then it is entitled to say that, in the context of that case, the voluntary route is not a satisfactory way of concluding the matter, and that it wishes, therefore, to choose the formal route. The policy as framed accords with, or at the least allows for, that interpretation. The professional accountant reading this policy statement, and aware of the setting in which it was promulgated and the promise to the public that self-regulation would be proactive, would not, I think, reasonably conclude that in such circumstances the policy required the voluntary route willy-nilly."

95. As in the Ernst & Young case, this case was a high profile and complex case which the Council, understandably, wished to resolve as soon as reasonably practicable. That the Council had the policy in mind before it came to its decision to appoint an Investigation Committee is clear. The question of voluntary disclosure was mentioned in the Registrar's memorandum of 30 April, pressed on the Council by Mr Best on behalf of the applicants at the meeting of 4 May, just before he absented himself from discussion of this item of business, and the minutes of the meeting show the alternatives discussed.

96. Mr Wong, in his affirmation, explains the concerns of the Council. He points out that in previous cases conducted by the PSMC - which appears to have in the past been the vehicle for informal or 'voluntary' investigations - obstacles had been met in obtaining documents and information, in particular when audit clients required their professional advisers to maintain confidentiality. Firms had, according to this evidence, repeatedly in the past raised concern about discovery (in the context of litigation) of information provided voluntarily. The Council took the view that a statutory investigation in this case would enjoy powers of ready access to documents and information; statutory assurances of secrecy; and statutory protection for the accountants from action or complaint grounded on breach of confidentiality. So, too, the Council decided that such an investigation was likely to result in swifter resolution. Subject only to the question whether, in addressing issues of confidentiality and discoverability of documents, the Council took into account irrelevant considerations - for that is the next argument of the applicants - the approach taken by the Council in its application of the policy is one that is not, to my mind, impeachable. I note in this context how obvious was the difficulty that lay ahead in obtaining consent from the audit client to the release of information. So, for example, on 22 March 1999, the applicants told the Stock Exchange that they were not in a position to answer certain questions raised because the clients had not provided information. On 29 March, KPMG wrote to the respondent in response to the respondent's request for information of 8 March :

"... we have to obtain from the Company a release of our duty of confidence prior to submitting the requested information to the Society. However, based on our preliminary discussion with the management of the Company, we have been advised that it is considered premature at this stage to provide the requested information, as an investigation into the Company's affairs is being carrying out by the Company."

On 1 April, solicitors for Guangnan wrote to the Registrar :

" We have informed The Stock Exchange of Hong Kong Limited ... that our client has no objection for the Stock Exchange to release to you any relevant information contained in the KPMG submission of 22nd March 1999, ... and any other future submission for the Company or from KPMG relating to the same matter.

However, we are instructed to inform you that you are NOT authorised to release any of the aforesaid information to Deloitte Touche Tohmatsu or any other organisation without our client's prior written consent."

On 5 May, the applicants wrote to the company withdrawing the audit report dated 10 June 1998, a move which attracted wide publicity and protest by the company.

97. In that setting, it took scant imagination to anticipate real difficulty for an inquiry which supposed voluntary and effective cooperation by the main actors. The case for holding a statutory investigation was in my opinion strong, and not contrary to the policy as that policy was sensibly to be interpreted and applied.

IRRELEVANT CONSIDERATIONS

(1) Confidentiality

98. The minutes and notes of the meeting of 4 May, evidence a view taken by the Council that the appointment of an Investigation Committee offered to the professional accountant a measure of protection against complaints that disclosure of information would constitute a breach of the relationship of confidence between client and accountant. It is implicit in Mr Wong's evidence that previous experience showed this to be an inhibiting factor. Section 42D(3) of the Ordinance was thought to provide comfort and protection in this regard :

" (3) A person who complies with a requirement of an Investigation Committee which is made by virtue of subsection (1) shall not incur any liability to any other person by reason only of the compliance."

The applicants now submit that the view that section 42D(1) compels a professional accountant to deliver relevant documents regardless of client confidentiality is, as a matter of law, wrong, and that the threat by a client to enjoin an accountant from complying with a requirement under section 42D(1)(a) to produce, say, a document, would constitute a reasonable excuse for failing to comply. The relevance of 'reasonable excuse' is to be found in section 34(1)(a)(vii) of the Ordinance, for it is a disciplinary offence to fail without reasonable excuse to comply with such a requirement. Mr McCoy says that the duty of confidentiality arises by reason of the contract between accountant and client, and that in the absence of some suitable proviso in such a contract, the contractual duty must prevail in the sense described.

99. I do not agree. This was a point with which I dealt in the Ernst & Young judgment, at page 36 :

"'What we are concerned with here is the contractual duty of confidence generally implied though sometimes expressed between a solicitor and client. Such a duty exists not only between a solicitor and client but for example between banker and customer, doctor and patient and accountant and client. Such a duty of confidence is subject to, and overridden by, the duty of any party to that contract to comply with the law of the land. If it is the duty of such a party to a contract, whether at common law or under statute, to disclose in defined circumstances confidential information, then he must do so, and any express contract to the contrary would be illegal and void.' (per Diplock LJ in Parry Jones v. Law Society [1969] 1 Ch 1, 9). So it is in the context of section 42 of this Ordinance. The duty of confidentiality between client and accountant is overridden by the power of the Investigation Committee to require the production of documents. Were it otherwise, Part VA of the Ordinance would be significantly denuded of effect. It is not necessary to canvass the type of rare situation in which there might be a reasonable excuse to refuse to comply with an order for production of documents, but client confidentiality is not one of them. Section 42D(3) makes it clear that the accountant who complies with such an order would not thereby incur liability by reason of compliance; and guidance issued by the profession expressly states that members of the Society must disclose information if compelled by law."

100. Nothing advanced by Mr McCoy alters the view I then held. Indeed, I now note a provision of the Ordinance which, I believe, further undermines the applicants' submission. That provision is section 42D(5) :

" (5) Nothing in this section shall be taken to compel the production by a person of a record or document containing a privileged communication by or to a legal practitioner in that capacity."

Had it ever been contemplated by the legislature that the relationship of confidentiality between client and accountant rendered the accountant immune from a demand by an Investigation Committee to produce documents, this subsection would be otiose. The legislature clearly contemplated protection from disclosure in relation to documents covered by legal professional privilege only.

(2) Discovery

101. In his evidence, Mr Wong said that :

"... the HKSA had previously received legal advice that documents and statements given to the PSMC were not privileged in the sense that they could be subpoenaed by a third party for use in litigation. In the enquiries made by the PSMC into the cases referred to the HKSA by the Stock Exchange in late 1998 and early 1999, the firms concerned had repeatedly raised a concern over the discovery of information provided voluntarily (i.e. not under the investigation framework) to the HKSA. In the Guangnan case, the Council recognised that it was highly possible that there would be litigation amongst the interested parties, including actions against the auditors. The Council also anticipated the need during the enquiry to seek information from parties other than the Applicant, such as KPMG and the directors of Guangnan, who might not be prepared to co-operate fully without the assurance of secrecy."

102. The minutes show the same concern : reference to the legal implications in the event of a law suit arising during the course of investigation and a contention that the "statutory secrecy requirements ... will render the findings of the Investigation Committee not discoverable by any person in the event of a law suit". The same view emerges from the manuscript notes of that meeting.

103. The Society had, in September 1998, sought legal advice. It was troubled by this question of discoverability of documents. The concern was about papers generated during the inquiry process. I see from minutes of a meeting that month that the Council was dealing with a referral of a matter to the Council by a lawyer representing a minority shareholder, and the Council was worried that papers generated by the inquiry process might then be used in further of a civil action. So the Council sought legal advice, and the advice was that it would be surprising if the Council could be compelled to give evidence or produce such documents in civil proceedings.

104. Mr McCoy argues that this view of the liability to disclose documents was plainly wrong, and that, accordingly, the respondent took into account a consideration which was irrelevant. He says, first, that discovery would not arise as an issue unless the respondent were itself party to the action; and, secondly, that section 42G does not override such subpoena duces tecum as might be issued, and to illustrate or strengthen this point, he draws to my attention the language of section 4(3) of the Inland Revenue Ordinance :

" (3) No person appointed under or employed in carrying out the provisions of this Ordinance shall be required to produce in any court any return, document, or assessment, or to divulge or communicate to any court any matter or thing coming under his notice in the performance of his duties under this Ordinance, except as may be necessary for the purpose of carrying into effect the provisions of this Ordinance."

105. One sees at once that the language of section 4(3) of the Inland Revenue Ordinance is not to be found in the Professional Accountants Ordinance. But section 4(3) merely means that in no circumstance shall a subpoena duces tecum (or a subpoena ad testificandum) be available in respect of returns, documents and information covered by that section. There is no absolute bar of that kind in relation to information in the hands of the Council or of an Investigation Committee. Yet, for practical purposes, the comfort found by the respondent in section 42G against compulsion to disclose documents or to reveal information was not, in my judgment, ill-founded. It seems to me that were a subpoena to be issued to disclose documents generated by an inquiry under section 42D, the grounds for setting aside such a subpoena would in most cases be cogent. Section 42G(3) makes it a criminal offence for any member of the Council or the Investigation Committee to disclose or to communicate any matter coming to his knowledge in the performance of a function under Part VA of the Ordinance. There is provided by the Ordinance no defence of lawful authority, and the only exception permitted (see section 42G(2)) is disclosure made in relation to, or for the purpose of, any disciplinary proceedings under Part V of the Ordinance, or in relation to or for the purpose of criminal proceedings. To permit such a subpoena to stand would sit ill with the provisions and intent of section 42G. The respondent is under a statutory duty to discourage dishonourable conduct and practices by professional accountants and, to that end, to hold inquiries where the circumstances so require. That is a function which that body is entrusted to fulfill in the public interest, and it seems to me that the conduct of investigations is likely to be inhibited if those who would otherwise communicate their views and information freely to an Investigation Committee, were under the impression that they could not do so for fear that what they say or show might be disclosed, and might even be used against them in future litigation. I do not think that the courts would readily permit that.

106. There is a further factor which supports the respondent's case that the Council was not taking into account an irrelevant consideration in this regard, and it is that firms had repeatedly raised concern about the possibility that information disclosed voluntarily might be discovered in litigation. That being so - and it is unchallenged evidence - the Council were quite right to take that concern into account and, unless it were shown that the concern rested on flimsy ground, to give it weight in its deliberations.

THE SECTION 34 POINT

107. An Investigation Committee may only be appointed where the Council "reasonably suspects or believes that -

(i) a professional accountant has acted in a manner described in section 34(1)(a)(iii);

(ii) subparagraph (iv), (v), (vi), (vii), (viii), (ix) or (x) of section 34(1)(a) applies to a professional accountant, or a firm of certified public accountants, or public accountants ..."

The relevant subsections of section 34 provide as follows :

"(1) A complaint that -

(a) a professional accountant -

(iii) whether as a professional accountant or not -

(A) falsified or caused to be falsified any document;

(B) made any statement which is material and which he knows to be false or does not believe to be true, in respect of any document;

(iv) has been negligent in the conduct of his profession;

(v) without reasonable excuse, failed or neglected to comply with any direction issued under section 32F(2) and with which he was required by the Practice Review Committee to comply;

(vi) failed or neglected to observe, maintain or otherwise apply a professional standard;

(vii) without reasonable excuse, failed or neglected to comply with any requirement made under section 42D in relation to him by an Investigation Committee;

(viii) has been guilty of professional misconduct;

(ix) refused or neglected to comply with the provisions of any bylaw or rule made or any direction lawfully given by the Council;

(x) was guilty of dishonourable conduct as a professional accountant;

...

shall be made to the Registrar ..."

108. By an amendment to the notice of application permitted in the course of the hearing, the applicant complains that neither to itself when it met on 4 May, nor to the Investigation Committee which it appointed did the Council identify the subsection of section 34 in respect of which it made its decision. It is said that the Council did not deliberate and decide upon, or even consider, under which of the several subsections it was acting; and that it did not tell the Investigation Committee the subsection or subsections to be addressed for the purpose of that committee's investigation; and, finally, that the respondent "failed to advise the applicants, despite numerous requests, to identify the basis under which it was constituting the Investigation Committee".

109. I must in this case proceed on the same footing or assumption upon which I proceeded in the Ernst & Young case, which is that the Council did not at its meeting articulate specific provisions of section 34, either in its deliberations or in its collective conclusion. I am told by Mr Wong and by Mr Kam, the President of the respondent Society, what it is the Council "would have had" in mind. "It is not specifically spelt out in the memorandum [of 30 April 1999] and I would not presume to put such an obvious question," says Mr Wong, "but all members would have understood that the question they had to address was why the auditors failed to detect such errors in the audits of the accounts for the previous years. It is not explicitly stated, but what would have been in the minds of members of the Council would have been possible reasons such as failure to follow the HKSA's Auditing Standards, professional negligence or even an extraneous matter such as a carefully executed fraud by management. ... The Council was satisfied from the papers before it that it had reasonable grounds to believe or suspect that the applicants had been in breach of section 34(1), specifically the subsections relating to negligence and the failure to observe professional standards." In his affirmation, the President of the Society confirms "the accuracy of everything said by Mr Wong in his affidavit both as to what happened at those Council meetings and the thought process of the Council in its deliberations prior to the appointment of the Investigation Committee."

110. The minutes of the meeting make no reference to section 34 of the Ordinance and state that "the Council resolved that an Investigation Committee should be appointed to examine whether the firm had complied with the professional standards of the Society in their audit of the financial statements of Guangnan Holdings Limited for the year ended 31 December 1997".

111. The notes made at the meeting show a concentration by the Council on the question as to the appropriate course, that is, whether to appoint an Investigation Committee rather than a special working group or the PSMC. There are, however, two references to sufficiency of evidence to warrant an investigation - one member is recorded as saying that there is a "prima facie case for doing an investigation" and another as saying that there was "sufficient ground for Society to appoint Investigation Committee".

112. On 10 May 1999 the respondent informed the applicants that "the Council has decided to constitute an Investigation Committee under section 42C of the PAO to look into the conduct of the audit by your firm of the financial statements of Guangnan (Holdings) Limited for the year ended 31 December 1997".

113. Those nominated to serve on the Investigation Committee were told that "[s]ubject to endorsement by the Council, the terms of reference of the Investigation Committee are to investigate the conduct of the audit of the financial statements of Guangnan (Holdings) Limited for the year ended 31 December 1997 ... by [the applicants] and by those professional accountants involved in that audit ... to ascertain whether there were breaches of the provisions of section 34(1)(a) of the PAO and to report its findings to the Council, specifying whether in the opinion of the Investigation Committee there is a prima facie case against the firm and/or any professional accountants." The letter of appointment then states the basis of the Council's concern.

114. In so far as it is said that there were numerous requests made by the applicants to identify the basis under which the Council appointed the Investigation Committee, I note that there was a meeting on 9 May between Mr McKelvie and Mr Wong, and the letter of 14 May from the applicants to the respondent does not evidence concern then by the applicants to establish or ascertain the subsections under which the Investigation Committee was appointed. The letter, in its relevant part, says :

"(a) I expressed our concern that the investigation may only focus on the 1997 audit. The interests of all parties, capital markets, and of the whole profession, would best be served if the committee's scope was expanded to include all audit work, including KPMG's work, since the 1997 audit.

(b) I advised that we were considering filing a complaint against KPMG in respect of their report of the Guangnan financial statements for the nine months ended September 30, 1998. We discussed my suggestion that the same Investigation Committee should be involved in reviewing any such complaint so that all the facts could be assessed by one group of people. This would prevent the duplication of effort and the possibility of conflicting findings by two separate committees."

There is no request there to identify "the basis under which the Council appointed the Investigation Committee," and, that in my judgment must be because the basis was as obvious to the applicants as it must have been to the Council and to any professional accountant who had read the public announcements and had seen the same reports and submissions as the applicants had seen. I note, too, that in June the Society wrote to the applicants identifying the relevant financial statements at issue, and that thereafter the applicants engaged in correspondence with the respondent by which they sought to persuade the respondent that as a result of further announcements, there existed no longer any justification for an inquiry; and that at least an investigation was premature. The applicants' solicitors came into the correspondence in mid-June, and on 17 June the applicants wrote to say that the KPMG report of 28 February was substantially flawed, and that the Society "cannot hold the reasonable suspicion and belief necessary to pursue its investigation of DTT". There is no question raised about the subsection of section 34 which was engaged, or about the basis for the original decision, save only the suggestion that the evidence upon which that decision was based was flawed. Even when, on 30 June 1999, the applicants lodged a complaint against KPMG, particularizing specific suggested failings, an exercise which might, one would think, have excited such unease as the applicants felt - if they felt it - about lack of similar particularity as against themselves, they raised no such question about the basis of the decision to investigate or about the terms of reference.

115. The answer to the questions raised by the applicants in this part of the application lies in the terms of section 42C. What section 42C requires as a condition precedent to the lawful appointment of an Investigation Committee is that the Council in fact reasonably suspects or believes that the accountant has acted in a manner described by section 34(1)(a)(iii), or that one of the other subparagraphs of section 34(1)(a) specified in section 42D(2)(a)(ii) applies to the firm or accountant. Articulation of the subsections, open debate about the subsections, is no more than evidence that such suspicion was, or was not, embraced. The absence of such articulation and the absence of debate may prove that there was no such suspicion. But that is not an inevitable conclusion, and the prime circumstance in which such a conclusion does not follow is where it is all too obvious to require articulation. Mr McCoy does not invite me to disbelieve Mr Wong and Mr Kam when each says that the Council was satisfied from the papers before it that it "had reasonable grounds to believe or suspect that the applicants had been in breach of section 34(1), specifically the subsections relating to negligence and the failure to observe professional standards;" merely that I should accord to that evidence no weight, for it is, he says, self evidently a mind reading exercise, unsupported by any articulation of such a belief at the meeting.

116. It is, to me, obvious that the Council in fact held the suspicion that the applicants had either been negligent (section 34(1)(a)(iv)) or had failed to observe, maintain or otherwise apply a professional standard (section 34(1)(a)(vi)), and that the reason for the absence of specific identification at the meeting of these provisions was because the history and nature of the subject matter made articulation unnecessary. Each member of the Council was sent the memorandum of 30 April which must have made clear that the special accounts published by the company, and the KPMG report (all of which was forwarded with that memorandum) raised the question why apparently serious accounting errors had not been detected in the audit; and that memorandum specifically said that the "Council would need to consider whether the information presently available to Council would give grounds to a 'reasonable suspicion' under section 42C(2)(a) ..." of the Ordinance. Part VA of the Ordinance was enclosed with the memorandum. Section 42C, which is part of Part VA, refers to section 34, although section 34 was not enclosed. As I have pointed out, the notes of the meeting evidence some discussion or comment about the sufficiency of evidence to justify appointment of an Investigation Committee. Subsections (iv) and (vi) of section 34(1) were the most obvious provisions to be engaged against the history and facts of the case, and in these circumstances, I see no sufficient reason to doubt that the condition precedent of section 42C(2) was met.

117. Nor, in my judgment, is there anything in the complaint that the relevant subsections were not identified to the applicants. I think it desirable that the accountant should be informed, and it may be that in some cases the failure to do so will found a justifiable complaint. But not in this case. The applicants were in no way disadvantaged, and did not themselves complain because, as I say, they knew full well the basis for the appointment of the Investigation Committee.

118. This was not a roving commission to the Investigation Committee; or perhaps it is more accurate to say that, in so far as the Investigation Committee was asked to rove, its roving was to be within clearly identified and acceptable boundaries. The subject matter of the investigation was defined, and the Committee was asked to address the question whether there were breaches of the provisions of section 34(1)(a). It may well be that the terms of section 42C do envisage greater specificity than something that broad, where the Council itself has come to a reasonable suspicion limited to a specific subsection. But there will be cases, especially cases of complexity, where the Council will harbour a suspicion which ranges across most of the subsections, where the Council can do no more than believe that one or more of the subsections is engaged, and where more specific identification will involve the Council in the very function which the Investigation Committee is itself designed to perform. In this case, the Council suspected, in fact, that provisions of section 34 were engaged, and in particular suspected the existence of facts covered by section 34(1)(a)(iv) and (vi) : that did not, in my judgment, require the Council to limit the Investigation Committee to those two subsections. Its suspicion was not confined to those two subsections and the inquiry by the Investigation Committee might reveal a prima facie case of a number of subsections. The terms of reference in such circumstances limited as they are to a particular subject matter as well as to section 34, requires, within those parameters, to be broad enough to cater for the subject at hand. That is what the Council did in this particular case.

119. In the event that the Investigation Committee were to find a prima facie case, it would of course have to identify the particular subsection or subsections of section 34 in respect of which that case was found. And where the Council constitutes a Disciplinary Committee under section 42C(1), then, too, the Council must identify the subsection or subsections of section 34 which form the complaint to be investigated. But I do not think that, on the facts of a case such as the present, that kind of specificity is invariably required when the Council asks as Investigation Committee to investigate a case, and I do not think that the failure to do so in this case rendered the appointment of the Investigation Committee unlawful.

SECRECY

1. Relief sought

120. The applicants seek a declaration that the respondent has acted in breach of the duty of secrecy imposed by section 42G of the Ordinance, "by its public announcements on 3 March 1999, 11 May 1999 and 11 June 1999".

2. The statutory provision

121. Section 42G provides as follows :

" (1) Subject to subsection (2), and except in the performance, or assisting in the performance, of a function under this Part, the Registrar, any member of the Investigation Committee or the Council, any person to whom any of the powers of the Investigation Committee is delegated under section 42E(1) or any person holding any other position who assists any of such persons in the performance of a function under this Part -

(a) shall at all times after his appointment as the Registrar, a member of the Investigation Committee or the Council, a person to whom any of the powers of the Investigation Committee is delegated under section 42E(1) or to such other position, as the case may be, or during or after the performance of or assisting in the performance of such function, preserve and aid in preserving secrecy with regard to any matter coming to his knowledge in the performance or in assisting in the performance of any such function;

(b) shall not at any time communicate any such matter to any other person; and

(c) shall not at any such time suffer or permit any other person to have any access to any record, document or other thing which is in his possession or under his control by virtue of his being or having been so appointed or his having performed or having assisted any other person in the performance of such a function.

(2) Subsection (1) shall not apply in relation to any disclosure made in relation to or for the purpose of any disciplinary proceedings under Part V or criminal proceedings.

(3) Any person who contravenes subsection (1) commits an offence and is liable on conviction to a fine at level 6 and to imprisonment for 6 months."

3. The articles

122. There are three newspaper articles specified in the notice of application :

(1) On 4 March 1999, there was an article in the business section of the South China Morning Post ("SCMP") headed "HKSA to probe Guangnan audit". It referred to the KPMG report, to the applicants by name, and said that the :

" HKSA registrar described the Guangnan case as a matter of public interest.

The Society would contact KPMG, Deloitte and the Stock Exchange to appraise the situation.

If there was a case for professional misconduct, the HKSA would initiate disciplinary proceedings, Mr Wong said."

123. Mr Wong then wrote to the editor of that newspaper emphasizing that "this is not an investigation which by definition under the Public Accounts Ordinance, is a formal institution whereby the Society is vested with statutory powers to order proceedings ..."

124. This article can be dealt with briefly. It cannot be said that such statement as may have been made by Mr Wong about a possible investigation was in relation to any matter which came to his attention in the performance of a function under Part VA of the Ordinance. In early March, the respondent had merely notice of concerns, as well as the announcements made by the company; and the statement made to the press, if the report is accurate, was saying no more than that the respondent was looking into the matter.

125. The applicants' complaint has, not surprisingly therefore, concentrated on communications to the media after the appointment of the Investigation Committee.

(2) On 11 May 1999, there appeared in the Hong Kong Economic Times an article that attributed comments to Mr Ding Wai Tsuen. Mr Ding is, and was also in May 1999, the Director of Professional Conduct of the respondent Society. He was not present at the meeting of 4 May, but was told soon after, by the Registrar, that he would be providing secretarial support to the Investigation Committee. There have been some questions about the date of his appointment as secretary, but it is assumed, for the purpose of argument, that by the time he spoke to the Hong Kong Economic Times Mr Ding had, in effect, been appointed as secretary to the Committee. Mr Ding states, and the applicants accept his statement, that when he spoke to the journalist on 10 May, it did not occur to him that he could be accused of being in breach of section 42G of the Ordinance. Advice had been given by the respondent's solicitors that the disclosure of the fact that an Investigation Committee had been appointed was not unlawful. Furthermore, he says, the journalist already knew that the Investigation Committee had been appointed. What she wanted to know was whether the appointment was connected with the applicants' withdrawal of the audit. Mr Ding accepts that the report accurately reflects what he said to that newspaper. The article said :

"An officer of the Professional Conduct Committee of the HKSA, Ding Wai-tsuen, confirmed that the committee had decided to exercise its statutory authority to carry out a disciplinary investigation into the work of Deloitte Touche Tohmatsu acting as an auditor of Guangnan (Holdings) Limited. As this is an issue of public interest, the HKSA hopes the disciplinary committee can complete its investigation within a short period of time.

...

Mr Ding said that since KPMG issued its Guangnan audit report in March, the HKSA has started to collect information, and the committee believes that there are reasons to suspect that professional conduct has not been adhered to. Hence it is decided to appoint an investigation committee under Section 42 of the Professional Accountants Ordinance.

...

'The investigation is to find out the truth. Before the investigation is completed, one cannot assume that someone has committed ... professional misconduct simply because there is an investigation,' Mr Ding emphasized."

(3) On 11 June 1999, an article in the Sing Tao Daily said that a Mr Chow Kong Fai, Chairman of the HKSA's Corporate Governance Committee, had said that he expected the respondent's independent investigation into the Guangnan affair to achieve results in three months :

" Chow Kwong Fai indicated yesterday that when HKSA set up the independent investigation committee to deal with Guangnan case, it decided that it should resolve the matter as soon as possible.

He anticipated the investigation would be completed in 3 months. He personally agreed to publicise the results of the investigation."

Mr Chow is, and was in May 1999, a member of the Council, and also Chairman of the Society's Corporate Governance Committee. He was present at the meeting of 4 May. Mr Chow says that he told the press that his comments were made in his personal capacity. He also says in his evidence that he believed that the restrictions imposed by section 42G related to working information arising in the course of an investigation, and not to the fact that an investigation was under way; and, further, he says that the fact that an Investigation Committee had been appointed was in any event in the public domain and common knowledge well before the publication of this article.

4. The respondent's stance

126. It is clear from the evidence that by the time the decision was taken on 4 May to appoint the Investigation Committee, the respondent held the view, upon advice, that it was not precluded by the provisions of section 42G from announcing the fact of an appointment of an Investigation Committee. That said, the minutes and the manuscript notes of the meeting, if they are a full enough record, evidence some uncertainty as to how, precisely, media interest was to be handled. The minutes show that "the Council ... agreed that no formal announcement should be made on the constitution of the Committee". Given the understandable use of abridged sentences, one cannot be sure that one is interpreting the manuscript notes accurately. There is a suggestion that the matter would definitely go to the press - perhaps an acknowledgement that the press would inevitably know of the meeting and the decision there taken. There is reference to a decision that there should not be a public announcement, at least not volunteered, or formally. Mr Wong's evidence on the question of publicity is as follows :

"The minutes also recorded that the Council would not publicise the investigation in a high profile manner. What that meant was first, Council would not make a formal announcement of the decision but would confirm the existence of the investigation if asked by the media and, secondly, the HKSA should emphasise to the enquirer that the investigation was only fact-finding and Council had passed no judgment on the matter."

5. A shift in attitude?

127. By the time I came to hear argument in the Ernst & Young's case, the stance taken by the respondent appeared to have changed, and this was because of an apparent shift in the legal advice which it had received. Mr Huggins, in that case, stated :-

"On a proper construction of s.42G if the fact that an investigation committee has been constituted comes to the knowledge of the person identified in the section in the performance of a function under Part V, then that person must keep that fact secret." (emphasis added)

By a letter dated 15 March 2000, the respondent's solicitors, whilst not themselves persuaded that their original advice was incorrect, nonetheless accepted "the proposition that any member of the council or any person described in section 42G who had anything to do with the establishment or setting up of an Investigation Committee must keep that fact secret".

128. However, in the course of argument, there appears to have been some reversion to the original position taken by the respondent, but this is not a conundrum that I need to resolve, for I am not in any event bound by any concession. The question is what is the correct position in law.

6. The arguments

129. Mr McCoy's argument on the construction of section 42G is straightforward : the fact of the appointment of the Investigation Committee came to the attention of Mr Choy and Mr Ding in the performance of their functions under Part VA and that the Hong Kong Society of Accountants, through these officers of the respondent body, announced that a committee had been appointed. Even mere confirmation of a fact already in the public domain breaches section 42G. The rationale for section 42G is, he says, obvious - that during the decision-making process and the investigation stage, nothing has been proved or decided against the subject of the investigation, and that public knowledge of the fact of such an investigation would unfairly and materially harm the professional reputation of a person or body named.

130. There was also raised a contention in the notice of application that by reason and by the tenor of the press statements, there was evidenced a predetermination of the issues, so that no fair investigation could take place. That suggestion is not pursued, and there is no need for me to deal with it.

131. Mr Huggins submits :-

(1) that the declaration sought attacks a suggested announcement by the respondent; yet, he says, there was no such announcement by the respondent. There was certainly no decision to announce; on the contrary, the evidence is that it was decided not to make any announcement and that only the existence of the Investigation Committee could be confirmed, if confirmation was sought. Any act by a council member which went beyond that authorisation would be an act for which the respondent could not be vicariously liable;

(2) that by the time Mr Ding and Mr Chow said what they said to the press, the appointment of the Committee was no longer a secret. It was a matter of public knowledge. There was therefore no secrecy to preserve;

(3) that in any event, Mr Ding did not reveal information that came to him in the performance of a function under the Ordinance. If the information came to him before his appointment as Secretary to the Committee, then self-evidently he had not by then performed any function. If it came to him after his appointment, then, even so, it is shown only to have come to him in his capacity as Secretary to the Investigation Committee, but not in the performance of any function in that capacity;

(4) that section 42G is designed to preclude facts emerging in the course of an investigation, and is not designed to prevent the disclosure of the fact that an investigation is taking place; and

(5) that in so far as it might be said that the fact that an Investigation Committee had been appointed came to Mr Chow's attention in the course of his performing a function under the Ordinance, then Mr Chow was not breaching section 42G because the matter had long before become public knowledge; and that, in any event, Mr Chow was speaking on his own behalf and was not acting on behalf of the respondent.

7. Analysis

132. I do not agree with Mr McCoy's contention that "the reason for the Ordinance imposing strict obligations of secrecy backed up with a clear sanction is because during the decision-making process, nothing has been proven or established against the professional accountant", and that the measure is designed to protect the accountant from damage to reputation at a stage when there is no adverse finding. I am satisfied that the provisions of section 42G are there as a balance to the wide powers given to the Investigation Committee by section 42D to secure the production of records and documents, to require explanations, to inspect and examine, and to the fact that a person is not excused from complying with any such requirement, even though compliance might tend to incriminate him. I am further of the opinion that section 42G does not, by its terms, preclude disclosure of the fact that an Investigation Committee has been appointed.

133. In the analysis of this section, it is to be remembered that Mr McCoy's submission is advanced in relation to a statutory requirement breach of which constitutes a criminal offence for which the offender is liable to imprisonment. It follows, as a principle of statutory interpretation, deriving from public policy, that such doubts as may exist as to the proper construction of section 42G must be resolved in favour of the less restrictive, the less prohibitive, alternative. A penalty of this nature may not be imposed save under clear law (see Bennion "Statutory Interpretation" 3rd Ed., pp.637 et. seq.).

134. The practical consequence of Mr McCoy's contention would lead, in my judgment, to results that can never have been intended. In particular :-

(1) It would mean that, in a case such as the present, which had attracted much publicity, press comment and, hardly least, concern by the regulatory authorities, the respondent would be precluded from telling anyone what action it had taken in response to the company's public announcements of February and March 1999. The Council would, on this broad construction, be precluded from informing even the Stock Exchange that it had appointed the Investigation Committee. Mr McCoy says that there is nothing odd about that. If asked questions, the Council or the Society could properly say, he suggests : "We are dealing with it in terms of the Ordinance, and we are dealing with it enthusiastically". But why, I ask myself, if the primary argument be correct, is even that allowed? - for that information itself has come to the knowledge of a Council member in the performance, Mr McCoy would say, of his function under the Ordinance. I notice from Hansard, 16 November 1994, that it was said, upon resumption of the debate on the second reading of the Bill which introduced Part VA, that " ... the Bill helps to enhance the transparency of the accounting profession". If that is what the legislators intended, section 42G, with the meaning Mr McCoy would ascribe to it, would do little to achieve that laudable aim.

(2) Mr McCoy's contention, if correct, would have the odd result that the respondent could not disclose the fact that there was to be an investigation, the purpose of which was to ascertain if there was even a prima facie case of, say, negligence against an accountant; but that the respondent could lawfully disclose, to all the world, the fact that a complaint had been made under Part V alleging that an accountant had, say, himself falsified documents - even at a stage where the bona fides of the complaint had not been established, and even at a stage when no prima facie case was established. Part V of the Ordinance places no prohibition upon disclosure of such a fact. Indeed, Part V has no secrecy provision at all, so that the fact of a complaint, or the fact that a Disciplinary Committee has been established, is in no way precluded from disclosure. There is a power under Part V, in the Disciplinary Committee, "to summon any person to attend the proceedings to give evidence or produce any documents or other thing in his possession and to examine him as a witness" (section 36(1)(b)), but that is a less extensive power than that granted by section 42D, and it carries with it the right to refuse to produce a document on the ground that it might incriminate the party or witness producing it - a right not available to a person required to produce information under Part VA. The only secrecy provision in the Ordinance, other than section 42G, is that contained in section 32H. It is in terms which are virtually identical to those of section 42G and it is, in my judgment, no coincidence that Part IVA of the Ordinance, in which section 32H is to be found, houses powers to require, in the context of a practice review, production of documents which powers are expressed (section 32E) in very much the same terms, and which are as extensive, as those in section 42D. No protection is expressly given by Part IVA against production of incriminating material. It follows that the only Parts of the Ordinance that provide wide powers of inspection of documents and wide powers to require production of documents and information (with no protection against self-incrimination) also contain secrecy provisions.

135. That, in my opinion, illustrates that which I think is in any event the common sense of the matter, namely, that section 42G is intended to ensure that the information which comes to the knowledge of the investigators and those to whom they report, knowledge gleaned in the course of the investigation and acquired in consequence of the exercise of intrusive powers, should not be revealed to third parties. That is only right, and is the price that must obviously be paid if such intrusive powers are given and exercised, and are accompanied by an obligation to provide information, even if to do so might reveal incriminating matter.

(3) Section 42C(1) of the Ordinance provides as follows :-

" (1) Where pursuant to a direction under subsection (2) an Investigation Committee informs the Council that in its opinion there is a prima facie case against the professional accountant, the Council may in its discretion constitute a Disciplinary Committee pursuant to section 33(3) and refer the matter to it, and the Disciplinary Committee concerned shall deal with it as if it were a complaint referred to it under section 34(1) and for that purpose the matter shall be deemed to be a complaint made to the Registrar by the Investigation Committee."

The power thus conferred on the Council is conferred by section 42C, which comes within Part VA of the Ordinance. It would follow from Mr McCoy's proposed construction that no member of the Council who was privy to a decision to refer a matter to a Disciplinary Committee, after a finding of an Investigation Committee that there was a prima facie case, could impart to a third party the information that such a decision had been taken; for, according to this argument, it is information which had come to that members' knowledge in the performance of a function under Part VA. Yet it cannot be disputed that where the same member of the Council is privy to a decision by the Council under section 33 to constitute a Disciplinary Committee in consequence of a section 34 complaint, he may lawfully announce the fact of such constitution to whomsoever he may please. Such a divergence of approach can also never have been intended.

(4) There is, it seems to me, a material difference between, on the one hand, information that comes to the knowledge of a person by mere virtue of his appointment and, on the other, information that comes to his attention in the performance of a function. It is a distinction we find in section 42G(1)(c) :

"... shall not at any such time suffer or permit any other person to have any access to any record, document or other thing which is in his possession or under his control by virtue of his being or having been so appointed or his having performed or having assisted any other person in the performance of such a function." (emphasis added)

One notes that section 42G(1)(a) does not require secrecy "with regard to any matter coming to his knowledge by virtue of having been so appointed". So, in this case, the information that the Council had decided to appoint an Investigation Committee came to Mr Ding's knowledge only by virtue of the fact of his appointment. Therefore, he was not required by section 42G(1)(a) to keep that information secret. Yet (assuming that the applicants' case as to section 42G is correct), if, a few minutes earlier, Mr Chow as a member of the Council, sits in on the meeting of 4 May, as he did, and hears the Council agree, with or without his concurrence, to appoint an Investigation Committee, he commits an offence if he communicates that fact, for in taking part in the meeting, he has performed a function. That result, also, can never have been intended.

136. I would be most loathe, in these circumstances, to attribute criminal liability to the mere disclosure of the fact that an Investigation Committee had been appointed. Had that been intended, one would require words that were clearly to that effect : words, for example, akin to those employed by section 30 of the Prevention of Bribery Ordinance :

"Any person who knowing or suspecting that an investigation in respect of an offence alleged or suspected to have been committed under part II is taking place, without lawful authority or reasonably excuse, discloses to -

(a) a person who is the subject of the investigation ... the fact that he is so subject or any details of such investigation; or

(b) the public, a section of the public or any particular person the identity of the subject person or the facts of the subject person is so subject, ...

shall be guilty of an offence ... ."

I am aware that the intention there is to ensure that other suspects are not forewarned, but my point is to illustrate the type of formula which the draftsman might have employed to convey the intention which Mr McCoy would insist was the intention of the legislature when enacting section 42G.

137. In my judgment, the phrase "in the performance of his function under this Part" is directed at the investigative process, which is to say the process by which the Council at first, and the Investigation Committee later, receives, and seeks and obtains, and studies, information and comments and analyses. It refers to an ongoing function of gathering information and comment. But the act of appointment of a Committee is in essence no more than the exercise of a power, rather than the performance of a function (a distinction hinted at by section 32D) and, in my judgment the fact that the power is exercised is not a fact covered by section 42G.

138. I hold that there has been no breach of section 42G; and that the information in the position of Mr Ding and Mr Chow was not precluded from disclosure by that section. It is unnecessary to consider whether the section prohibits disclosure of matters already within the public domain, or the question of the liability of the respondent for acts of its officers.

CONCLUSION

139. This application for judicial review has covered much terrain - there were a large number of grounds, original and amended, advanced by the applicants. It must be emphasised that neither the Council nor the Investigation Committee has made any finding at all that the applicants have been at fault. Indeed, as should be amply apparent from this judgment, there has not even been a finding of any prima facie case of fault. Matters are at a very preliminary stage. The applicants are nonetheless concerned that the publicity attendant upon the appointment of the Investigation Committee, might, quite unfairly, have enured to their detriment and have taken the view that the respondent has treated the firm unfairly and not followed procedures prescribed by law. Hence this challenge.

140. I am, however, satisfied that none of the attacks made upon the legality of the respondent's decision of 4 May 1999 to appoint an Investigation Committee is good in law. I find that the decision was lawful, and that there exist no valid grounds to quash that decision, or to make any of the orders sought in relation to it.

141. I further hold that the respondent has not acted in breach of the duty of secrecy imposed by section 42G of the Ordinance, so that the declaration for which the applicants ask in that regard will not be granted.

142. That being so, this application for judicial review is dismissed. There will be a costs order nisi that the applicants shall pay to the respondent its costs of and occasioned by this application, such costs to be taxed, if not agreed.