Messrs Hlb Hodgson Impey Cheng (A Firm) and Others v. The Hong Kong Institute of Certified Public Accountants

CACV 192/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 192 OF 2010

(ON APPEAL FROM HCAL NO. 5 OF 2010)

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Before: Hon Tang VP, Chu JA and Lam J in Court

Date of Hearing: 8 November 2011

Date of Decision: 8 November 2011

Date of Reasons for Decision: 17 November 2011

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REASONS FOR DECISION

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Hon Tang VP:

1.We have refused leave to the Applicants to appeal to the Court of Final Appeal from our judgment dated 1 August 2011.

2.In our judgment, we set out the Applicants' complaint as follows:

"2.    In a nutshell, the Appellants' case is that, having regard to all the relevant facts and circumstances in the present case, a fair-minded and informed observer would conclude that there was a real possibility that the IC members were not acting independently and impartially.  The learned Judge erred in holding otherwise, paying mere lip-service to fundamental principle safeguarding both actual substance and appearance of independence and impartiality."  para. 16.

3.The Applicants relied principally on the decision of the Court of Final Appeal in Medical Council of Hong Kong v Helen Chan (2010) 13 HKCFAR 248.  Helen Chan was concerned with a decision which decides final questions affecting parties' rights and duties.

4.In our judgment, we examined the evidence (see para. 25 of our judgment) and concluded by agreeing with Reyes J:

"29.  But as Reyes J said and I respectfully agree:

'44.  The real question is what the "requisite degree" of independence and impartiality is which the IC must show.

45.   There is a whole spectrum of independence and impartiality.  The more formal the nature of the decision-maker and the more significant the consequences of its decision, the more rigorous the degree of independence and impartiality that such entity must show.'"

5.The questions said to be involved in this appeal are as follows:

"Where a tribunal is under a statutory duty to decide whether a prima facie case exists (which may lead to disciplinary proceedings being commenced against a professional),

(i)  whether the tribunal needs only to observe a lesser degree of independence and impartiality;

(ii)  even if so, whether the safeguards for securing the actual and more pertinently the appearance of independence in respect of the process of deliberation and decision drafting as stated by the CFA in Medical Council of Hong  Kong v. Helen Chan (2010) 13 HKCFAR 248 are inapposite to such a tribunal."

6.The context for question (i) is that this application involves an Investigation Committee ("IC") whose function, under section 42C(2)(a) of the Professional Accountants Ordinance (Cap. 50) ("PAO"), is "to inform the (Council of the Hong Kong Institute of Certified Public Accountants ("the Council")) as to whether in its opinion ... the certified public accountant … would have a case to answer" and where if it be the IC's opinion that there is such a prima facie case, the Council may constitute a Disciplinary Committee ("DC") to deal with it (section 42C(1)).

7.I do not believe question (i) is a question of great general or public importance.  Furthermore, the authorities in support of Reyes J's conclusion are too clear to require elucidation.

8.As for question (ii), in para. 25 of our judgment, we set out an extensive description of the conduct of the IC.  On such evidence, we concluded that IC had not fallen short of the requirement stated in para. 62 of Bokhary PJ's judgment in Helen Chan.

"Or otherwise"

9.Mr Johnny Ma, for the Applicant, also relied on the "or otherwise" limb.

10.It is a rare case indeed if this Court grants leave to appeal on the "or otherwise" basis.  This is not such a case.

Disposition

11.For the above reasons, I dismissed the application for leave to appeal.

Hon Chu JA:

12.I agree.

Hon Lam J:

13.I agree.

Mr Johnny K C Ma, instructed by Messrs Lo & Lo, for the Applicant

Mr Charles Sussex, SC, instructed by Messrs Reed Smith Richards Butler, for the Respondent