Registrar of the Hong Kong Institute of Certified Public Accountants v. Chan Yui Hang

CACV 528/2020

[2022] HKCA 1555

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)

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Before:  Hon Kwan VP, Yuen and Chow JJA in Court

Dates of Written Submissions:  26 August, 9 September and 3 October 2022

Date of Judgment:  26 October 2022

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.On 15 July 2022, this Court gave its judgment (“the CA Judgment”) dismissing 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 against him were proved, and (ii) the further decision of the Committee on 3 September 2020 relating to sanctions and costs.

2.The facts of this case and the Court’s reasons for dismissing Mr Chan’s appeal were fully set out in the CA Judgment and will not be repeated here.

3.Mr Chan now applies by Notice of Motion dated 12 August 2022 for leave to appeal the CA Judgment to the Court of Final Appeal. In the Notice of Motion, Mr Chan raises 2 questions which (he contends), by reason of their great general or public importance or otherwise, ought to be submitted to the Court of Final Appeal for decision:

“(1)  Whether on a proper [construction] of the law, the Disciplinary Committee should have such wide power and as such will infringe the principle of ‘natural justice’ in their determination [of] the calling of witness in a disciplinary hearing (‘[Question] 1’).

(2)  In the alternative, whether the Court of Appeal erred in making its finding that the circumstances of the Disciplinary Committee’s refusal to call the witnesses does not fall into the ‘exceptional circumstances’ (‘[Question) 2’).”

4.Under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal in any civil cause or matter if, in the opinion of the Court of Appeal or the Court of Final Appeal (as the case may be), the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

5.Both Questions 1 and 2 relate to Mr Chan’s proposal to call two persons (Ms Lo and Ms Cheng) to give evidence at the hearing of his disciplinary inquiry. His complaint was against the direction given by the Committee on 14 September 2018 that no witness was to be called at the hearing. The Court rejected Mr Chan’s complaint for 3 reasons:

(1)  The Committee’s directions given on 14 September 2018 (“the Directions”) did not in fact preclude him from applying to file additional evidence (in particular, Ms Lo and Ms Cheng’s witness statements, which he had indicated in his Checklist dated 8 August 2018 he could produce prior to the hearing), or to call them to give evidence at the hearing, pursuant to paragraph 4 of the Directions and/or Rule 11 of the Disciplinary Committee Proceedings Rules (§50 of the CA Judgment).

(2)  The disciplinary process of the Institute was intended to be based primarily on written submissions presented before the oral hearing, and the parties were required to fully set out their respective cases in writing. In view of the failure of Mr Chan 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, or produce witness statements of Ms Lo and/or Ms Cheng, the Committee’s case management decision that no witness was to be called at the hearing could not be faulted (§§51 & 54 of the CA Judgment).

(3)  In any event, Mr Chan was unable to show what evidence Ms Lo and Ms Cheng could give in support of his case, or that he had suffered any prejudice by reason of the absence of Ms Lo and Ms Cheng as witnesses at the hearing (§55 of the CA Judgment).

6.Mr Chan’s principal argument in support of the present application is that the Committee is obliged to permit attendance of witnesses save in exceptional circumstances where there is a material dispute of fact in relation to the matter. In support of this argument, Mr Chan relies on paragraph 45 of the “Guidelines for the Chairman and the Committee on Administering the Disciplinary Committee Proceedings Rules” (“the Guidelines”), which states as follows -

“With respect to directions for the cross-examination of the parties and the attendance of witnesses, when there is a material dispute of fact in relation to an issue and a party wishes to call a witness to give evidence in relation to the matter, the Committee is (save in exceptional circumstances) obliged to permit the attendance of the witness…”

7.In our view, it is clear that the application of this rule is premised on the proposed witness being able to give some relevant evidence on a material dispute of fact. Mr Chan failed, however, to identify precisely the facts in dispute, or what relevant evidence his intended witnesses could give in relation to any disputed facts (see §54 of the CA Judgement). In relation to the specific issue or issues in respect of which he considered Ms Lo and Ms Cheng could give evidence, he merely stated, at §3 of his Checklist, the following:

“1.  All the statements produced by the aforesaid witness are full of misrepresentation.

2.  The intention of those witness [sic] in initiating this complaint case is merely to put pressure on respondent to 100% recover their debt.”

As a matter of fact, Mr Chan failed to produce any witness statement of Ms Lo or Ms Cheng, although he had indicated in his Checklist that he could do so prior to the hearing. In these circumstances, paragraph 45 of the Guidelines plainly has no application.

8.Mr Chan also argues that the Court “opined that the Respondent is at liberty to summon the witnesses at his own will”. This is a misunderstanding, or misstatement, of what the Court decided. At §50 of the CA Judgment, the Court stated that “[a]lthough 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” [underlining added]. If Mr Chan made such an application (which he did not), it would then be a matter for the Committee to decide whether to accede to the application and issue a summons or summonses to direct Ms Lo and/or Ms Cheng to attend the hearing and give evidence.

9.It is clear that Mr Chan’s complaint relates to a specific case management decision made by the Committee in the light of the particular facts and circumstances of his case. His intended appeal does not involve any question of great general or public importance. The suggestion that the Committee acted contrary to the principles of natural justice plainly has no substance. Neither do we see that the disciplinary rules or process of the Institute enable or empower the Committee to act contrary to the principles of natural justice. We are satisfied that the intended appeal has no merits and no reasonable prospect of success.

10.We also cannot see any basis to grant leave to appeal on the “or otherwise” limb in s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance. In any event, it is the settled practice of the Court of Appeal to defer consideration of the “or otherwise” limb to the Appeal Committee of the Court of Final Appeal. There is no good reason to depart from this practice in the present case.

11.Accordingly, the application for leave to appeal is refused, and the Notice of Motion is dismissed with costs to the Complainant, to be assessed summarily on an indemnity basis (for the reasons mentioned at §67 of the CA Judgment). Mr Chan shall have leave to file and serve a statement of objections (limited to 2 pages) to the Complainant’s Statement of Costs dated 9 September 2022 within 14 days from the date of this order. Subject to any further directions as may be given, the Court will thereafter assess the Complainant’s costs summarily.

The Respondent, acting in person

Mr Lau Ka Kin, instructed by Minterellison LLP, for the Complainant