Registrar of the Hong Kong Institute of Certified Public Accountants v. Chan Yui Hang
Read the full judgment text of CACV 528/2020 on BabelCite. This Court of Appeal judgment was delivered on 15 July 2022.
1. This is Mr Chan’s appeal against (i) the decision of the Disciplinary Committee (“ the Committee ”) of the Hong Kong Institute of Certified Public Accountants (“ the Institute ”) on 13 November 2019 that five complaints preferred by the Registrar of the Institute (“ the Registrar ”) against him were proved, and (ii) the further decision of the Committee on 3 September 2020 relating to sanctions and costs.
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CACV 528/2020 [2022] HKCA 805 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 528 OF 2020 (ON APPEAL FROM D-16-1196C, D-17-1235C) ________________________
_____________________ Before: Hon Kwan VP, Yuen and Chow JJA in Court Dates of Written Submissions: 25 April 2022 and 10 & 17 May 2022 Date of Judgment: 15 July 2022 ________________ J U D G M E N T ________________ Hon Chow JA (giving the Judgment of the Court): INTRODUCTION 1.This is Mr Chan’s appeal against (i) the decision of the Disciplinary Committee (“the Committee”) of the Hong Kong Institute of Certified Public Accountants (“the Institute”) on 13 November 2019 that five complaints preferred by the Registrar of the Institute (“the Registrar”) against him were proved, and (ii) the further decision of the Committee on 3 September 2020 relating to sanctions and costs. 2.On 7 March 2022, this Court directed, with the consent of the parties, that the appeal shall be disposed of on paper. For the purpose of the appeal, Mr Chan has filed Skeleton Submissions dated 25 April 2022[1] and Reply Submissions dated 17 May 2022, and the Registrar has filed Written Submissions dated 10 May 2022. BASIC FACTS (i) Background 3.Mr Chan was a certified public accountant. Leco Watch Case Manufactory Limited (“the Company”) was a private company incorporated in Hong Kong on 8 July 1988. 4.On 26 November 2012, the Company commenced creditors’ voluntary winding up, and Mr Chan was appointed as provisional liquidator of the Company, pursuant to s 228A of the Companies (Winding Up and Miscellaneous Provisions) Ordinance, Cap 32 (then known as the Companies Ordinance[2], hereinafter referred to as “the Ordinance”). 5.On 14 December 2012, Mr Chan was appointed as sole liquidator of the Company at the first meeting of the creditors of the Company. The creditors also resolved at that meeting not to appoint a committee of inspection. 6.The liquidation of the Company continued for more than one year, and was continuing during the period of time covered by the five complaints against Mr Chan. By 24 June 2013, Mr Chan had received the total sum of about HK$4.7 million as liquidator’s fees. 7.By a letter dated 11 September 2017 (“the Complaint Letter”), the Registrar submitted five complaints (“the Complaints”) to the Council of the Institute (“the Council”) against Mr Chan for failing to observe various provisions of the Ordinance, and failing or neglecting to observe, maintain or otherwise apply professional standards as provided in ss 500.5(e), 500.40 and 500.43 of Chapter E (titled “Specialized Areas of Practice”) of the Code of Ethics for Professional Accountants (“the Code”):
(ii) The Complaints 8.The First Complaint concerned Mr Chan’s failure to convene annual creditors’ meetings in breach of s 247(1) of the Ordinance, and s 500.5(e) of Chapter E of the Code. 9.Section 247(1) of the Ordinance states as follows: “In the event of the winding up continuing for more than 1 year, the liquidator shall summon a general meeting of the company and a meeting of creditors at the end of the first year from the commencement of the winding up, and of each succeeding year, or at the first convenient date within 3 months from the end of the year or such longer period as the Official Receiver may allow, and shall lay before the meetings an account of his acts and dealings and of the conduct of the winding up during the preceding year.” 10.Under s 500.5(e) of Chapter E of the Code, an insolvency practitioner shall “comply with relevant laws and regulations and avoid any conduct that the professional accountant knows or should know might discredit the profession”. 11.The winding-up of the Company commenced on 26 November 2012. Mr Chan was required by s 247(1) of the Ordinance to convene annual creditors’ meetings of the Company as follows -
12.Upon the Registrar’s inquiry with Mr Chan, he was unable to provide any evidence (eg gazette notices, meeting minutes, etc) to show that such annual meetings had been convened. Mr Chan alleged that 3 creditors’ meetings had been convened on 4 December 2012, 4 October 2013 and 10 June 2016 respectively. The Registrar did not, however, accept that those meetings were relevant or satisfied the requirements of s 247(1) of the Ordinance, for the following reasons:
13.The Second Complaint concerned Mr Chan’s failure to file liquidator’s statements of account in time, in breach of s 284(1) of the Ordinance, and s 500.5(e) of Chapter E of the Code. 14.Section 284(1) of the Ordinance states as follows: “If where a company is being wound up the winding up is not concluded within 1 year after its commencement, the liquidator shall, at such intervals as may be prescribed, until the winding up is concluded, send to the Registrar a statement in the prescribed form and containing the prescribed particulars with respect to the proceedings in and position of the liquidation.” 15.Rule 181 of Rules provides that: “In a voluntary winding up, the statements with respect to the proceedings in and position of a liquidation of a company, the winding up of which is not concluded within a year after its commencement, shall be sent to the Registrar of Companies twice in every year as follows - (a) the first statement commencing at the date when a liquidator was first appointed and brought down to the end of 12 months from the commencement of the winding up, shall be sent within 30 days from the expiration of such 12 months, or within such extended period as the court may sanction, and the subsequent statements shall be sent at intervals of half a year, each statement being brought down to the end of the half-year for which it is sent…” 16.Six out of seven of Mr Chan’s statements of account were filed late:
17.By reason of his delay in filing the statements of account for the half-year period ended 25 May 2015, Mr Chan was charged with an offence for failing to comply with s 284(1) of the Ordinance in the Eastern Magistrates’ Courts on 7 November 2015 (ESS3734/2015). He pleaded guilty to the charge, and was convicted and fined HK$5,000 for the offence. 18.In his letter dated 29 May 2017 to the Institute, Mr Chan explained that the delay was the result of “misunderstanding” on the part of ADGS in relation to notice(s) from the Companies Registry and his instruction(s), and he was considering to change ADGS’s appointment as his agent. 19.On the other hand, in his subsequent letter to the Institute dated 31 August 2017, Mr Chan stated that the delay was due to a lot of “unexpected legal action” and other “undisclosed serious matters found or happened during year 2013 to 2016”. 20.The Registrar considered that Mr Chan’s excuses could not absolve him of the breaches of s 284(1) of the Ordinance. 21.The Third Complaint concerned Mr Chan’s failure to retain overall control of the conduct of his engagement as liquidator of the Company, in breach of s 500.43 of Chapter E of the Code, which provides that: “If any appointment necessitates the employment of agents, an insolvency practitioner shall exercise care to retain overall control of the conduct of the engagement…” 22.The factual basis of this complaint has been set out in §§16-19 above. The Registrar considered Mr Chan’s allegation that the fault for the late filing of the statements of account lay with ADGS, and not with him, was clear evidence that Mr Chan had failed to exercise care to retain overall control of the liquidation. 23.In relation to Mr Chan’s suggestion, in his letter to the Institute dated 31 August 2017, that “the control of the works is proper and up to the budgeted time schedule”, the Registrar considered that the timesheets prepared by ADGS and relied upon by Mr Chan only showed that billing records of some kind had been kept, but did not and could not show that Mr Chan had retained adequate control of ADGS’s work. 24.The Registrar also took into account the fact that there was no evidence that Mr Chan had done any other work or taken any other step so as to exercise care to retain control, or to “remedy” the alleged default on the part of ADGS. 25.Overall, the Registrar was of the view that Mr Chan was in breach of s 500.43 of Chapter E of the Code. 26.The Fourth Complaint concerned Mr Chan’s failure to obtain proper approval by the creditors of his liquidator’s fees, in breach of s 244 of the Ordinance, and ss 500.5(e) and/or 500.40 of Chapter E of the Code. 27.Section 244(1) of the Ordinance states as follows: “The committee of inspection, or if there is no such committee, the creditors, may fix the remuneration to be paid to the liquidator or liquidators”. 28.The provisions of s 500.5(e) of Chapter E of the Code have already been set out in §10 above. As for s 500.40 of Chapter E of the Code, it states as follows: “An insolvency practitioner in the role as office holder has a professional duty to report openly to those with an interest in the outcome of the insolvency or liquidation. An insolvency practitioner shall report on his acts and dealings as fully as possible having regard to the circumstances of the case, in a way that is transparent and understandable. An insolvency practitioner shall bear in mind the expectations of others and what a reasonable and informed third party would consider appropriate.” 29.As earlier mentioned, Mr Chan had received HK$4.7 million as liquidator’s fees by 24 June 2013. The issue was whether the fees had been properly “fixed” by the creditors under s 244 of the Ordinance. In his letter of 27 March 2017 to the Institute, Mr Chan stated that his liquidator’s fees had been approved by the “major creditor” of the Company at the first meeting of the creditors held on 14 December 2012. In his further letter of 31 August 2017 to the Institute, Mr Chan referred to the “minutes” of the first meeting of the creditors (“the Minutes”), and said that the amount of HK$4,720,943.18 was paid according to “timesheet and billing”. In the Minutes, it was recorded that the creditors resolved, inter alia, that “the remuneration of Liquidator is 50% of the realise[d] assets of the Company excluding the investigation cost of Liquidator”. There is a dispute as to when Mr Chan first produced the Minutes to the Institute.
30.The Registrar further considered Mr Chan had breached s 500.40 of Chapter E of the Code, in that he did not report openly to those with an interest in the outcome of the liquidation in respect of his liquidator’s fees. The Registrar did not consider the disclosure of the liquidator’s fees of HK$4.7 million in the statement of account for the period ended 25 November 2013 to constitute compliance with the requirement of s 500.40, because:
31.The Fifth Complaint was based on the matters complained of under the First to Fourth Complaints which the Registrar considered gave rise to “professional misconduct” on the part of Mr Chan under s 34(1)(a)(vi) of the Professional Accountants Ordinance, Cap 50 (“the PAO”). That section states as follows:
32.The Registrar took the view that Mr Chan’s conduct referred to in the First to Fourth Complaints clearly constituted professional misconduct because:
(iii) The Decision on Liability 33.The hearing of the Complaints took place before the Committee on 16 January and 20 May 2019. By a decision dated 13 November 2019 (“the Decision on Liability”), the Committee found that the Complaints preferred by the Registrar against Mr Chan were all proved. 34.In respect of the First Complaint, the Committee held that:
35.In respect of the Second Complaint, the Committee found, based on the Companies Registry’s records in respect of the statements of account filed by Mr Chan, that 6 sets of accounts were filed after the statutory deadline imposed by s 284 of the Ordinance and r 181 of the Rules. The Committee further considered Mr Chan’s attempts to justify his failure to file the accounts on time to be blatant excuses which could not absolve him of his duty (see §§40-41 and 47-50 of the Decision on Liability). 36.In respect of the Third Complaint, the Committee considered that Mr Chan’s explanation for the late filing of the statements of account (namely, misunderstanding on the part of ADGS’s staff) showed that he had failed to retain overall control of the work delegated to ADGS, and Mr Chan’s breach was serious because the delay in filing the accounts would have deprived creditors of the Company of the opportunity to review the process of the liquidation on a timely basis. The Committee further considered that the timesheets prepared by ADGS and relied on by Mr Chan could not show that Mr Chan had retained overall control of the liquidation, because the timesheets merely showed that billing records had been kept. The Committee concluded that Mr Chan had breached s 500.53 of Chapter E of the Code (see §§55-57 of the Decision on Liability). 37.In respect of the Fourth Complaint, the Committee found that there was a lack of approval by the creditors of the liquidators’ fees received by Mr Chan contrary to s 244 of the Ordinance, and considered that the lack of approval was aggravated by the failure to hold annual creditors’ meetings (as established under the First Complaint), which meant that the creditors were kept in the dark about the progress and development of the liquidation and the actual fees charged by Mr Chan. The Committee considered that Mr Chan’s breach of the law and the manner in which the liquidator’s fees were obtained would bring discredit to the accountancy profession, and thus Mr Chan had also breached ss 500.5(e) and/or 500.40 of Chapter E of the Code (see §§76-77 of the Decision on Liability). 38.Finally, in respect of the Fifth Complaint, the Committee took into account that Mr Chan had (a) breached 3 provisions of the Ordinance (ie ss 244, 247 and 284) with regard to his duties as liquidator of the Company, and the breaches occurred repeatedly (in particular, he failed to hold 4 creditors’ annual meetings, and filed the statements of account late 6 times), (b) committed a major breach by failing to obtain prior approval from the creditors of the Company with regard to his liquidator’s fees which was a very serious breach of his obligations as the fees amounted to about 48% of the Company’s total assets, and (c) breached fundamental provisions of the Code (namely, ss 500.40 and 500.53 of Chapter E thereof). As a result of his misconduct, the creditors had been left in the dark over the course, progress and development of the liquidation. Mr Chan’s repeated failure to comply with relevant legal requirements demonstrated his disregard for his duties as liquidator, including the duty to protect the interests of the Company’s creditors and safeguard the creditors’ funds. His excuses for the breaches, which were wholly unsupported by evidence, showed a blatant disregard for his obligations. Mr Chan had also acted in breach of criminal law thereby bringing disrepute to the profession, and was actually prosecuted by the Registrar of Companies for a criminal offence. The Committee concluded that Mr Chan was guilty of professional misconduct under s 34(1)(a)(viii) of the PAO (see §§82-88 of the Decision on Liability). (iv) The Decision on Sanctions and Costs 39.By a further decision dated 3 September 2020 (“the Decision on Sanctions and Costs”), the Committee ordered that:
NOTICE OF APPEAL/SUPPLEMENTAL NOTICE OF APPEAL 40.By a Notice of Appeal dated 29 September 2020, Mr Chan appealed against the Decision on Liability and the Decision on Sanctions and Costs on the ground that the Committee “has erred in law in reaching its decision and also fails to consider material issues of law and evidence. The sanctions order was clearly wrong and clearly excessive and the costs order was also wrong and excessive”. 41.By his Supplementary Notice of Appeal dated 22 February 2021, Mr Chan raises 2 specific grounds of appeal:
42.It can be seen, from Mr Chan’s Skeleton Submissions dated 25 April 2022 and Reply Submissions dated 17 May 2022, that he is relying upon the 2 specific grounds in the Supplementary Notice of Appeal, instead of the general ground(s) in the Notice of Appeal, for the purpose of the present appeal. GROUND 1: THE COMMITTEE’S DIRECTION THAT NO WITNESS COULD BE CALLED TO GIVE EVIDENCE AT THE HEARING 43.Under Ground 1, Mr Chan complains about the (alleged) direction given by the Committee on 14 September 2018 that no witness could be called at the hearing. 44.The witnesses that Mr Chan proposed to call to give evidence were (i) Ms Amy Lo and (ii) Ms Joanne Cheng, who were representatives of two creditors (“Gar Shun” and “Tarong”) who had previously lodged complaints with the Institute against him in September 2016 and January 2017 respectively. Ms Lo complained that Mr Chan had failed to (a) properly convene and conduct creditor’s meetings of the Company, (b) seek proper approval for payment of liquidator’s fees, (c) promptly prepare the liquidator’s statement of accounts, (d) report the conduct of the liquidation of the Company, and (e) explain the basis of distribution to be made to the creditors of the Company, while Ms Cheng complained that Mr Chan had failed to (a) report the conduct/progress of the liquidation of the Company, (b) explain the nature of certain expenses in the liquidator’s statement of account, and (c) disclose the breakdown of income and expense of the liquidation to the creditors. Subsequently, the two creditors withdrew their complaints against Mr Chan in July 2017. It was Mr Chan’s position that the complaints by the two creditors were not genuine complaints but were steps taken “to force [him] to compromise and recover their debts fully”[9]. 45.Mr Chan considered that Ms Lo and Ms Cheng could give material evidence in relation to the 4th Complaint, in particular on the issue of whether he had sought approval from the creditors in respect of the liquidator’s fees[10]. In the Checklist of the Respondent dated 8 August 2018, he said it was necessary for them to appear and give evidence at the hearing. In relation to the specific issue or issues in respect of which he considered Ms Lo and Ms Cheng could give evidence, Mr Chan stated -
Mr Chan also stated that he could produce witness statements of the witnesses prior to the hearing. He did not request for the issue of any summons to compel Ms Lo and Ms Cheng to attend the hearing. 46.On the other hand, the Registrar did not intend to rely on the evidence of Ms Lo and/or Ms Cheng in support of the Complaints, and did not propose to call any witness to give evidence at the hearing[12]. 47.The parties attended a directions hearing before the Committee on 14 September 2018. At that hearing, the Committee gave, inter alia, the following directions:
48.Mr Chan argues that (a) Ms Lo and Ms Cheng could give crucial information on the resolution passed at the first meeting of the creditors regarding the remuneration to be paid to him as liquidator of the Company, and the failure to call the witnesses “has deprived the parties and the Disciplinary Committee the opportunity to examine the disputed fact”[14], and (b) the witnesses’ knowledge of the remuneration agreed to be paid to him would affect the Committee’s view that there was a continuous lack of approval of the liquidator’s fees paid to him[15]. 49.In our view, this ground of appeal is unsustainable. 50.First, it is clear from the directions given by the Committee on 14 September 2018 that the Committee did not preclude Mr Chan from applying to adduce further evidence from Ms Lo and/or Ms Cheng, or to call them to give evidence at the hearing. Although the Committee did direct that no witness was to be called at the hearing, it also expressly provided that Mr Chan was at liberty to apply to file additional evidence before the hearing and the Registrar would be given an opportunity to respond to such application. This was in addition to the general power of the Committee under Rule 11 of the Disciplinary Committee Proceedings Rules (“the DCP Rules”) “in their discretion and at any stage of the proceedings, on request of the parties or on their own motion, … [to] make such directions for the conduct of the proceedings as they consider appropriate”. 51.Second, the actual directions given by the Committee cannot be faulted in the circumstances of this case. In this regard, it is important to bear in mind that the disciplinary process of the Institute is intended to be based primarily on written submissions presented before the oral hearing, and the parties are required to fully set out their respective cases in writing (see Hong Kong Institute of Certified Public Accountants v Ng Kwok Ching [2021] HKCA 1821, at §24). Rule 17 of the DCP Rules provides that the parties shall submit written Cases setting out their respective submissions on all material matters and annexing all documentary evidence on which they rely, while Rule 22 provides that, unless the Chairman or the Committee orders otherwise, the parties’ Cases and Replies (including annexed documentary evidence) shall constitute submissions of the parties in the proceedings and evidence in the proceedings. 52.In Schedule 1 (Form of Notice of Commencement of Proceedings) to the DCP Rules, it is stated that:
53.Further, Schedule 3 (Form for Respondent’s Case) to the DCP Rules expressly states that:
54.In the present case, in Mr Chan’s Checklist, he stated that it was necessary to call Ms Lo and Ms Cheng as witnesses to give evidence at the hearing, and indicated that he could produce witness statements of the witnesses prior to the hearing. However, he failed to identify precisely the facts in dispute, or what relevant evidence Ms Lo and/or Ms Cheng could actually give in relation to any disputed facts. Neither did he ask for any summons to be issued to compel Ms Lo or Ms Cheng to attend the hearing to give evidence. Notwithstanding the Committee’s directions that no witness was to be called at the hearing, Mr Chan was expressly told that he was at liberty to apply to file additional evidence before the hearing and the Registrar would be given an opportunity to respond to such application. If and when Mr Chan was able to produce witness statements of Ms Lo and/or Ms Cheng, the Registrar would be able to assess whether there was any dispute of their evidence and whether it was necessary for them to be called as witnesses at the hearing. As it was, Mr Chan never produced any witness statements of Ms Lo and Ms Cheng. There was thus no basis for the Committee to grant general leave to Mr Chan for Ms Lo and Ms Cheng to be called as witnesses at the hearing. In any event, the decision under challenge is a case management decision made by the Committee. It is well established that the court would not interfere with a case management decision save in wholly exceptional circumstances, such as where the decision involves an error of law or principle, or will give rise to clear injustice, or is irrational, or is otherwise plainly wrong. No such exceptional circumstances exist here. 55.Third, even up to now, Mr Chan has not been able to show what evidence Ms Lo and Ms Cheng can give in support of his case. The fact that “Gar Shun” and “Tarong” have withdrawn their complaints against Mr Chan cannot be taken to mean that Ms Lo and/or Ms Cheng would give evidence in his favour. Mr Chan has failed to show that he has suffered any prejudice by reason of the absence of Ms Lo and Ms Cheng as witnesses at the hearing. 56.For the above reasons, Ground 1 is rejected. GROUND 2: SANCTIONS AND COSTS 57.Under this ground, Mr Chan complains that (i) the sanctions imposed on him were clearly excessive, and (ii) the Committee failed to consider or sufficiently consider relevant circumstances in his favour when making the Decision on Sanctions and Costs. 58.In respect of the complaint that the sanctions imposed were clearly excessive, it is well established that the court would not interfere with the sanction imposed by a specialist tribunal whose members consist of members of the same profession such as the Committee in this case, unless the sanction is plainly wrong, excessive or disproportionate. So long as the sanction imposed falls within the reasonable range of options, the court will not intervene (see Registrar of the Hong Kong Institute of Certified Public Accountants v Leung Kam Man Victor, CACV 37/2016 (17 January 2017), at §§11-16). 59.In the present case, the Committee took into account, inter alia, the following matters when deciding on the sanctions to be imposed on Mr Chan:
60.In our view, the sanctions imposed on Mr Chan fell well within the reasonable range of options open to the Committee. There is no basis for the Court to interfere with the sanctions imposed in this case on the ground of excessiveness. 61.In respect of the complaint that the Committee failed to consider or sufficiently consider relevant circumstances in his favour, Mr Chan relies on the following matters:
62.As for (1), the Committee considered that: “As a result of the Respondent’s misconduct, the creditors were left in the dark over the course of the liquidation period as no annual creditors’ meeting was held for 4 years, the liquidator’s statements of account were filed late, and no proper approval of the Liquidator’s Fees has been obtained. Thus, the creditors have been oblivious to the progress and development of the liquidation of LECO” (see §11 of the Decision on Sanctions and Costs). It is plain that the Committee was of the view that creditors’ interests were harmed in consequence of Mr Chan’s misconduct. We consider that the Committee was entitled to come to such view. 63.As for (2) and (3), the Committee in fact gave consideration to the matters relied on by Mr Chan in the Decision on Sanctions and Costs:
64.It was a matter for the Committee to decide what weight, if any, to give to those matters. Mr Chan was 62/63 years of age at the time when the Committee gave the Decision on Liability and the Decision on Sanctions and Costs. There is no proper basis to suggest that an order that no practising certificate be issued to Mr Chan, a professional accountant, for a period of 12 months would in effect force him to retire early. 65.In so far as Mr Chan relies on the sentence given in Case No D-16-1162H where dishonesty was involved, the circumstances there are vastly different from the present case. In that case, the respondent was convicted of the offence of theft of a mobile phone in a restaurant. He reported the conviction to the Institute, admitted the complaint against him, did not dispute the facts as set out in the complaint, and the checklist procedure and substantive hearing were dispensed with. In deciding on the sanction to be imposed, the Committee took into account the respondent’s expression of deep regret, and considered that a reprimand and a financial penalty would be adequate in the circumstances. As the Committee correctly reminded itself, “every case of professional misconduct is different based on facts and circumstances such that the previous decisions as to sanctions imposed are of reference value only” (see §7 of the Decision on Sanctions and Costs). We do not consider the sanction imposed in Case No D-16-1162H should be regarded as setting a reference point for the sanction to be imposed in the present case. 66.In all, Ground 2 has no merits and is rejected. DISPOSITION 67.Mr Chan’s appeal is dismissed with costs to the Complainant. Taking into account the total lack of merits of the appeal, and the fact that the Institute is a public body defending this appeal in the general interests of the accountancy profession with funds contributed by its members, there is no reason why it should be out of pocket for the difference between costs on a party-and-party basis and costs on an indemnity basis (see Lie Han Ji v The Registrar of the Hong Kong Institute of the Certified Public Accountants, CACV 265/2009 (24 April 2012), at §§10, and 15-17). Accordingly, we make an order that Mr Chan shall pay the Complainant’s costs of and incidental to this appeal, to be taxed on an indemnity basis if not agreed.
The Respondent, acting in person Mr Lau Ka Kin, instructed by Minterellison LLP, for the Complainant [1] By his letter to MinterEllison LLP dated 5 May 2022, Mr Chan confirmed that he would withdraw paragraphs 8 and 16 of his Skeleton Submissions, and also the reference to the transcript of the proceedings before the Committee at paragraph 23 of the Skeleton Submissions. [2] The former Companies Ordinance (Cap 32) was re-titled Companies (Winding Up and Miscellaneous Provisions) Ordinance on 3 March 2014 upon the commencement of the new Companies Ordinance (Cap 622). [3] Rule 114(2): “The notice to each creditor shall be sent to the address given in his proof, or if he has not proved to the address given in the statement of affairs of the company or a supplementary affidavit in relation to that statement, if any, or to such other address as may be known to the person summoning the meeting…” [4] Rule 130(1) states: “The chairman shall cause minutes of the proceedings at the meeting to be drawn up and fairly entered in a book kept for that purpose or in the file of proceedings and the minutes shall be signed by him or by the chairman of the next ensuing meeting.” [5] Rule 123(2) states: “If within half an hour from the time appointed for the meeting a quorum of creditors or contributories is not present or represented the meeting shall be adjourned to the same day in the following week at the same time and place or to such other day as the chairman may appoint not being less than 7 or more than 21 days, from the day from which the meeting was adjourned.” [6] Rule 114(1) states: “The Official Receiver or liquidator shall summon all meetings of creditors and contributories by giving not less than 7 days’ notice of the time and place thereof in the Gazette and in one or more local papers …” [7] Included in Appendix 3 to Mr Chan’s letter of 31 August 2017 were the minutes of “the second creditors’ meeting” purportedly held on 10 June 2017 signed by Mr Chan as Chairman. [8] The 12-month period was ordered to run consecutively with another order for cancellation of his practising certificate for 24 months in disciplinary proceedings number D-17-1231P/1231C (then under appeal by Mr Chan). [9] See §6 of the Respondent’s Case filed in the disciplinary proceedings dated 6 June 2018. [10] See §7 of Mr Chan’s Skeleton Submissions. [11] See §3 of the Checklist of the Respondent dated 8 August 2018. [12] See §44 of the Complainant’s Submission dated 22 March 2019, and §3 of the Checklist of the Complainant dated 11 July 2018. [13] See the Committee’s letter to the parties dated 28 September 2018. [14] See §14 of Mr Chan’s Skeleton Submissions. [15] See §17 of Mr Chan’s Skeleton Submissions. |
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