The Registrar of the Hong Kong Institute of Certified Public Accountants and Another v. Chan Yui Hang and Others

CACV 226/2019

[2020] HKCA 59

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 226 OF 2019

(ON APPEAL FROM THE HONG KONG INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS PROCEEDINGS NO D-17-1231P)

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Before:  Hon Kwan VP and Yuen JA in Court

Dates of 1^st Respondent’s Written Submissions: 4 December 2019 and 30 December 2019

Date of 2^nd Complainant’s Written Submissions:  18 December 2019

Date of Judgment:  17 January 2020

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the court):

1.1This is an application by Mr Chan Yui Hang (“the appellant”) for leave to adduce fresh evidence at his appeal from the Decision of the Disciplinary Committee (“DC”) of the Hong Kong Institute of Certified Public Accountants (“HKICPA”) given on 31 December 2018 (“the Decision”) in which the DC found, in his absence, all the complaints against him proved.

1.2One of the grounds of appeal¹ is that the DC “failed to ensure the interests of fairness to the [appellant] by failing to adjourn the hearing when the [appellant] was absent from the said hearing because of illness”.    

2.We have decided pursuant to PD4.1 §36(12) to determine the application on paper.    

Background

3.The matter arises against the following background.

4.1The appellant was one of two practising partners of a practice (“the Practice”). 

4.2The Practice had been selected for an initial practice review in March 2014 at which apparently a number of deficiencies were identified.  A follow-up practice review was conducted two years later in April 2016, at which a number of deficiencies were apparently found again.  Consequently, the Practice Review Committee of the HKICPA raised a number of complaints against the Appellant, amongst others. 

5.The Notice of Commencement of Proceedings was issued on 8 February 2018, and the complainants’ case was filed on 8 March 2018.  The appellant sought extensions of time for various procedural steps in April, May, July and on 12 October 2018 respectively.

6.The substantive hearing of the complaints was scheduled to be held on 22 October 2018.  The appellant had previously been represented by solicitors², but he alleges they no longer represented him by that date.  There is no evidence before this court that the DC was notified of this before the hearing, but according to the Decision, the DC’s Clerk was informed that morning that that firm “did not have any instructions from [the appellant] to act for [him] in the substantive hearing”³.

Hearing

7.1In any event, on 22 October 2018, the Appellant did not appear at the hearing. Nor did a legal representative appear on his behalf. 

7.2It is common ground that a member of the staff of the DC⁴ telephoned the appellant and spoke to him, but it would appear that there is a dispute as to what was said by the appellant⁵.   

Dr Chan’s two documents

8.1Be that as it may, what is common ground is that two documents from Dr Stephen Chan Chau Sing (“Dr Chan”) of the Adventist Hospital in Tsuen Wan concerning the appellant’s physical condition the previous day (21 October 2018) were delivered, allegedly by Mr David Ho Sai Wah (“Ho”)⁶, to the office of the DC on the morning of the hearing on behalf of the appellant and were placed before the DC.

8.2Briefly, the two documents were as follows:

(1)  a letter on Adventist Hospital letter paper⁷ addressed to “To Whom it may Concern”, in which Dr Chan had written⁸:

“Known severe CAD and HT. ... Complained angina for few days. He refused admission and requested discharge against medical advice. Risks of sudden death and acute myocardial infarction explained. ...

Provisional diagnosis: Acute coronary syndrome” (emphasis added);

(2)  a Patient Referral Form⁹ to the Hospital Authority Specialist Clinic/A&E, in which Dr Chan had written the diagnosis of acute coronary syndrome, and also¹⁰:

“Patient request we DAMA. Risks explained of acute myocardial infarction and sudden death ...”.

Submissions by Counsel for the HKICPA      

9.At the hearing, General Counsel for the HKICPA addressed the DC on Dr Chan’s two documents as follows¹¹:

“Now we do know that, I think from previous records, that there had been some suggestion that Mr Chan [the appellant] had a medical problem but what I suppose is clear if I look at the second page and I’m no doctor - but Mr Chan did refuse admission but obviously he had been admitted, forced to admit, and the doctor actually discharged him after giving the appropriate caveats. Obviously if he had been admitted it would have been more serious and that is certainly something that I would say, would weigh in a factorial matter. But no, he was considered fair and healthy enough to be discharged and one can see that in the second paragraph of the second page, ‘Findings:” general condition fair’.

Now there are obviously the standard risks that are explained, you know, sudden death explain myocardial infarctions, but as I said again, there’s nothing to suggest that he required immediate admission. ...

... The rest I’m not too sure exactly, I’m not a doctor so I don’t know what’s an ECG, RBB, T-inversion 3VR V1' means, ... but ... he was discharged, he wasn’t admitted and he wanted to discharge himself, it was his own voluntary request”.  (Emphasis added).

The DC’s understanding

10.1The Chairman of the DC then said¹²:

“... I take note of this copy of doctor’s letter allegedly sent to us by a friend of the 1^st respondent, Mr Chan, but without reference to any application or application for adjournment. The DC take note of this and as the complainant has rightly mentioned, Mr Chan was discharged and it appears that also it happened on 21 October, that was yesterday, and there’s no indication that his medical condition has impaired his ability to instruct a legal representative to attend today’s hearing. So DC will take note of this letter and we should proceed with the hearing”. (Emphasis added).

10.2In the Decision, the DC said the following:

“48. During the hearing at around 10:13 am, someone who claimed that he was Chan’s friend, called the Clerk and represented that he had delivered a medical report of Chan to the Institute. Neither Chan nor his friend represented the purpose of providing the medical report to the Institute. ...”.

“50. The Complainants submitted that Chan ... had been given ample time and notification about the substantive hearing and to prepare for it. The medical report showed that Chan was not hospitalised and there was no indication from Chan or anyone that he would not turn up at the substantive hearing or any application that the substantive hearing should be adjourned because of his health condition. The Complainants suggested that the substantive hearing should be continued even though Chan ... [was] absent.

51. The [DC] agreed with the Complainants’ submissions and directed that the substantive hearing be proceeded in the absence of Chan ...”.

10.3So, on the above understanding of Dr Chan’s two documents and on the basis that the appellant had not applied for an adjournment, the hearing proceeded in the appellant’s absence.  As mentioned earlier, the DC found all complaints against him proved in the Decision of 31 December 2018.  It made an order on sanctions and costs on 29 April 2019.  

Fresh evidence

11.1The appellant lodged an appeal on 24 May 2019.  The present application is to adduce affirmations of the appellant, his son Chan Lok Cho and Ho, as well as a further medical report from Dr Chan dated 5 October 2019.

11.2Essentially the appellant and his witnesses allege in the affirmations that, contrary to the DC’s understanding as set out above, the appellant did wish to apply for an adjournment of the hearing because of his illness. 

-  The appellant’s affirmations

11.3According to the appellant, he had provided Dr Chan’s documents to Ho on 21 October 2018 with the following requests¹³:

“I told Mr Ho that if I really could not attend the disciplinary proceedings the next day because of my illnesses, I would call him in the morning on 22^nd October 2018 so that he might help me give the said two documents to the [DC] and ask the [DC] to adjourn the disciplinary proceedings because I could not attend for medical reasons”. (Emphasis added).

-  The son’s affirmation

11.4Although the appellant did not call Ho personally the next morning, his son did¹⁴:

“I then immediately called Mr Ho by phone and told him my father felt extremely unwell, I also asked him to take [Dr Chan’s two documents] to the [DC] and help us invite the [DC] to adjourn the proceedings because of my father’s illnesses”. (Emphasis added).

-  Ho’s affirmations

11.5According to Ho, he was aware that the purpose of delivering Dr Chan’s two documents to the DC was to ask it to adjourn the disciplinary proceedings if the appellant was unable to attend it for medical reasons¹⁵.  He confirmed that the appellant’s son had called him that morning repeating the request¹⁶. 

11.6Ho alleges that at about 9 am on the day of the hearing, he arrived at the office of the DC, and informed the receptionist that:

(1)  he was a friend of the appellant;

(2)  there were disciplinary proceedings against the appellant there that day;

(3)  “[the appellant] could not attend the disciplinary proceedings because he was ill and would like to have the disciplinary proceedings adjourned ”¹⁷. (Emphasis added).

11.7Ho alleges he gave Dr Chan’s two documents to the receptionist asking her to give them to the DC “so as to prove the medical illnesses of [the appellant]”¹⁸. 

11.8Ho also alleges that he “further requested the female receptionist to help ask the [DC] to adjourn the disciplinary proceedings because of the [appellant]’s illnesses”¹⁹ (emphasis added) and she said words indicating she would do so²⁰.

Dr Chan’s medical report

12.1Dr Chan’s two documents are of course not fresh evidence as they were tabled before and were considered by the DC. 

12.2The appellant is now also seeking to adduce a further medical report dated 5 October 2019 from Dr Chan in which he:

-  provides details of the appellant’s condition on 21 October 2018,

-  says that on that day, he had advised the appellant to be admitted to the Hospital to receive further medical treatment, but the appellant insisted that he needed to be discharged and refused admission²¹, and

-  explains the abbreviations used in the two documents which General Counsel said he did not understand when he made submissions to the DC²².

Discussion

13.It is common ground that the conditions set out in Ladd v Marshall²³ apply to an application to adduce fresh evidence on appeal.  These conditions are:

(1)  the fresh evidence could not have been obtained at the trial with reasonable diligence;

(2)  the evidence would, or might, if believed, have a very important effect on the mind of the tribunal; and

(3)  the evidence is of a sort which inherently is not improbable.

14.1As far as condition (1) is concerned, this is not the usual situation where the issue is whether the applicant could have found a piece of evidence before the hearing if he had searched harder or earlier.  The affirmations in this case pertain largely to what happened on the very morning of the hearing.  It is the appellant’s case that he had intended to appear at the hearing, but on the morning was too unwell to attend.  Assuming that is true, it follows that he would not have been well enough that morning to engage himself in preparing affirmations for himself, his son and Ho to sign, and attend before a solicitor or commissioner for oaths for presentation to the DC.  Besides, under the DC Proceedings Rules, strict rules of evidence do not apply²⁴.       

14.2Of course, having taken the precaution of providing Ho with Dr Chan’s two documents in case he was too unwell to attend the hearing, on 21 October 2018 the appellant could have written a note to the DC asking for an adjournment and attached the documents to the note, instead of just leaving it to Ho’s own devices as to how to request an adjournment.  But that is a different matter to saying that condition (1) in Ladd v Marshall has not been satisfied because the affirmations could have been obtained with reasonable diligence.

14.3As for Dr Chan’s further medical report, one can reasonably assume that a doctor in the Emergency Department of a hospital is unlikely to be able to prepare a full medical report within only a day of examining a patient.

15.1As for condition (2), it is obvious in our view that the evidence would, or might, if believed, have a very important effect on the mind of the tribunal.  The affirmations are to the effect that, contrary to the DC’s understanding²⁵, the appellant did wish to apply for an adjournment and had requested Ho to do so on his behalf.  Ho alleges that he did pass on that request to the DC, albeit by way of an oral message via the receptionist. 

15.2At this stage, whether Ho should have done more to pass on the appellant’s request is not to the point.  In any event, one wonders what is the purpose of the absent appellant providing Dr Chan’s two documents to the DC that morning if not to ask for an adjournment.  The documents could not have been provided for the purpose of mitigation as the DC had not yet decided if the complaints had been established. 

15.3Nor is it to the point that if the DC had been aware of the request for adjournment, what it would have decided to do.  The point is that the DC conducted itself on the understanding that the appellant had not requested an adjournment, when (on these affirmations) the appellant had done so. So this would clearly have had a very important effect on the mind of the DC.

15.4As for Dr Chan’s further medical report, this provides details of his findings and explanations for abbreviations not understood by General Counsel, and contradicts the submissions (accepted by the DC) that the appellant “was considered fair and healthy enough to be discharged”.  Even on General Counsel’s own submissions,“if he had been admitted it would have been more serious and that is certainly something that I would say, would weigh in a factorial matter”.  The further medical report makes it clear, if it was not clear enough from the two documents of 21 October 2018, that the doctor’s professional opinion was that the appellant needed to be admitted, and the discharge was explicitly “against medical advice”.  Accordingly this further report would clearly have had a very important effect on the mind of the DC.

16.As for condition (3), there is nothing before this court which indicates that the evidence is of a sort which inherently is not improbable.  It is not appropriate for this court at this stage to discuss collateral attacks on Ho’s credibility.  

Order

17.For the above reasons, we would make an order in terms of the summons with costs to be in the cause of the appeal.            

Mr Duncan Ma and Ms Karen Chan, instructed by Yu Hung & Co., for the 1^st Respondent

Mr Lau Ka Kin, instructed by MinterEllison LLP, for 2^nd Complainant