Registrar of the Hong Kong Institute of Certified Public Accountants v. Chan Kin Hang, Danvil

CACV 246/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 246 OF 2012

(ON APPEAL FROM THE DISCIPLINARY COMMITTEE OF THE HONG KONG INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS PROCEEDINGS NO D-09-0426-O)

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J U D G M E N T

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Hon Cheung CJHC :

1.I agree with the judgment of Poon J.

Hon Barma JA :

2.I agree with the judgment of Poon J.

Hon Poon J :

A. INTRODUCTION

3.The appellant faced three complaints of professional misconduct before the Disciplinary Committee of the Hong Kong Institute of Certified Public Accountants (“the Committee”).  The first complaint (“the Complaint”) was couched in these terms :

“First Complaint : Section 34(1)(a)(vi) of the Professional Accountants Ordinance applies to [the appellant] in that he had failed or neglected to observe, maintain or otherwise apply professional standards namely the Fundamental Principles set out in Statement 1.200, paragraph 5 of the Professional Ethics set out in Statement 1.291 and paragraph (a) of section 100.4 ‘Fundamental Principles’ as elaborated in sections 110.1 and 110.2 of the Code in respect of a Declaration on Details of Tender (Form A) (‘Form A Declaration’) he signed on 24 January 2006.”

4.On 30 April 2012, the appellant, through his solicitors, admitted in writing all the three complaints based on the admitted facts presented before the Committee.  At the substantive hearing on 15 May 2012, his counsel again confirmed his admission before the Committee.

5.By Reasons for Decision dated 26 September 2012, the Committee found that all the three complaints were proved against the appellant.  In respect of the Complaint, the Committee imposed a sanction of removing the appellant’s name from the Register of Certified Public Accountants for a period of 3 years (“Sanction”).[1]

6.The appellant now appeals against the Sanction only.[2]

7.The background pertaining to the Complaint is summarized as follows.

B. BACKGROUND

B1. Tender submitted to the Official Receiver

8.The appellant has been a member of the Institute of Certified Public Accountants since 1996, holding a practicing certificate since 2004.  He was at all material times the sole beneficial owner and the managing director of Honest Joy Accounting Services Co. Limited (“Honest Joy”).

9.On 24 January 2006, Honest Joy submitted a tender to the Official Receiver for its inclusion on the Official Receiver’s panel of provisional liquidators in order to take up appointment as such under section 194(1A) of the Companies Ordinance, Cap 32.  It was a requirement of the tender that Honest Joy had two recognized professionals, one of whom had to be its director.  The tender defined “a recognized professional” as a registered member of the accountancy profession, legal profession, company secretarial profession or any other profession recognized in writing by the Official Receiver as a registered profession for the purpose of the tender.

10.In support of the tender, Honest Joy submitted the Form A Declaration and Form B Declaration.

11.The appellant prepared, completed and signed the Form A Declaration as director authorized by Honest Joy.  The Form A Declaration declared and confirmed that Honest Joy had two directors, that is, the appellant and one Mr Tang Man Ching, a solicitor, (“Mr Tang”), both of whom were its registered professionals.  It further stated that Mr Tang had served Honest Joy as a director for one year.

12.The Form B Declaration contained Mr Tang’s particulars.  In preparing the Form B Declaration, the appellant first wrote the word “Director” on a blank Form.  He then instructed his secretary to type the word “Director” on the Form submitted.

13.In submitting the Form A and Form B Declarations, the appellant caused Honest Joy to represent to the Official Receiver that at the time of the tender, Mr Tang had been a director of Honest Joy for one year and was one of the two appointed recognized professionals of Honest Joy.

14.On 15 March 2006, the Official Receiver informed Honest Joy that its tender had been successful.  Subsequently, the Official Receiver appointed the appellant and a Mr Chan Man Yiu, as joint provisional liquidators over 7 companies.

B2. Misrepresentation

15.However, it later transpired that Mr Tang had never been a director or shareholder of Honest Joy.  He had never held a position as a recognized professional of Honest Joy.  Indeed, he had never been employed by Honest Joy.  And at no stage after Honest Joy’s appointment as provisional liquidator had the appellant notified the Official Receiver that, contrary to the representation in the tender documents, Mr Tang was neither a director nor recognized professional of Honest Joy.

16.The appellant’s conduct had misled the Official Receiver into believing that Mr Tang was both a recognized professional and director of Honest Joy.

B3. The appellant’s explanation

17.In his witness statement dated 26 May 2011, the appellant said that he had known Mr Tang since 2004.  In or about October 2005, Mr Tang told him that winding up cases were easy to handle and profitable.  The appellant told Mr Tang that if he tendered for those works from the Official Receiver, he would co-operate with Mr Tang to file a tender together.  After some discussions in January 2006, the appellant and Mr Tang orally agreed that Mr Tang would join Honest Joy as a director if the tender to be submitted by Honest Joy was successful.

18.In his witness statement dated 15 April 2011, Mr Tang denied that he had ever entered into the oral agreement with the appellant as alleged.

19.Before the Committee, neither the appellant nor Mr Tang was called to give evidence.  Their witness statements and a statutory declaration of the appellant dated 11 May 2012, together with other documentary evidence, were adduced as evidence without cross‑examination.  For the purpose of the disciplinary proceedings, the Committee accepted that the oral agreement as alleged by the appellant did exist.[3]

20.In his statutory declaration, the appellant further explained his conduct and expressed his remorse :

“6. …I admit I ought not to cut corner but to comply with the official requirement. I sincerely apologize for having done that without clearly thinking of the serious consequences and I truly regret for what had transpired. Of course, I need to mention that I never informed the ORO about the change at all. It never crossed my mind to deceive the ORO in relation to the status of Tang as a director and I certainly had no intention to deceive anybody. There were enough qualified professionals to take up the appointment and satisfied the tender requirement at the material times.”

The appellant was then referring to one Ms Tso Yin Yee as a possible recognized professional for Honest Joy.  But as will be seen shortly, the Committee did not accept his explanation based on Ms Tso’s possible involvement.

21.The appellant went on to say :

“9. …Before this incident, I can truly say [Mr Tang] and I were closed professionally and socially. As a result, there was never any reason for me to deceive anyone, but genuinely believed that [Mr Tang] would take up the directorship in [Honest Joy].”

C. THE COMMITTEE’S REASONING

22.In imposing the Sanction together with the fines on the 2^nd and 3^rd complaints, the Committee had this to say :

“1. Although this Committee accepts the alleged agreement by the Respondent and the Respondent has submitted that there was no need to enter Mr Tang’s position as a director of Honest Joy in the tender, the Respondent has failed to explain satisfactorily to this Committee what other position Mr Tang (who qualified as a recognized professional) could have been better described in order to link up his connection with Honest Joy as the tenderer. Further, there was a requirement by the OR that Honest Joy as the tenderer should at least have 2 recognized professionals. In the circumstances, there was a need for the Respondent to join Mr Tang as one of the 2 recognized professionals in Honest Joy in order for Honest Joy to qualify as a tenderer and there was a need to describe Mr Tang’s position in Honest Joy and so it was convenient or useful to describe Mr Tang as a director of Honest Joy. Even though this Committee accepts that there was the alleged agreement between the Respondent and Mr Tang, the fact remains that it was false to describe Mr Tang as a director of Honest Joy when in fact he was not. Any backdating of Mr Tang’s directorship with Honest Joy to the date of tender or earlier would again be another false representation to the Registrar of Companies and the public. It was further wrong and false to describe that Mr Tang has been a director of Honest Joy for one year and this could never have been true notwithstanding this Committee’s acceptance of the alleged agreement between the Respondent and Mr Tang.

2. Miss Tso Yin Yee, the other possible candidate for recognized professional for Honest Joy, could not have been used because according to the Respondent through his counsel at the hearing, she was at the material time only working part-time and not for Honest Joy but for the Respondent’s firm in a different name. This Committee finds that the Respondent had every intention and need to paint a picture in Honest Joy’s tender to the OR that Honest Joy had two recognized professionals and in particular, that Mr Tang has been a director of Honest Joy for one year, which was admittedly false notwithstanding the existence of the alleged agreement.

3. Further, the Respondent admitted that subsequent to the acceptance of the tender, he had never notified or attempted to notify the OR that, contrary to the tender document submitted, Mr Tang was neither a director nor a recognized professional of Honest Joy. Judging from the overall circumstances of this case (based on the admitted facts and evidence and the undisputed facts and evidence of this case) and considering the explanations offered by the Respondent, this Committee finds at a standard of proof commensurate with the allegation charged that the Respondent has been intentional and dishonest (rather than reckless) in committing the First Complaint notwithstanding this Committee’s acceptance of the alleged agreement between the Respondent and Mr Tang. The Respondent’s failure to rectify Honest Joy’s misrepresentation to the OR after successful tender was consistent with and further supported this Committee’s ruling that the Respondent had been dishonest in committing the First Complaint.

4. This Committee considers that the Respondent has, in committing the three Complaints, committed serious mis‑conducts and/or failures to observe or maintain a professional standard which have or will adversely affect the reputation of the profession of the accountants.  In committing the First Complaint, although the Respondent was not in a position of trust at the time of Honest Joy’s submission of tender to the OR, the Respondent intended Honest Joy to solicit such trust from the OR, who eventually gave such trust to Honest Joy when Honest Joy’s tender was successful.  Based on such trust, the OR appointed, inter alia, the Respondent as one of the two liquidators in handling various winding-up cases when in fact Honest Joy was not qualified to submit such tender and to handle these winding up cases in the first place. The public (including the creditors of companies under winding up in general) were at risks.  The Respondent’s failure to rectify the misrepresentation to the OR even though he knew that the same was false amounted to misconduct with continuing dishonesty on the part of the Respondent.”

23.The Committee then considered all the mitigation factors, including the appellant’s clear record, pleas of guilty and his remorse.  The Committee also took into account the totality principle.  They then imposed the Sanction on the Complaint.  They further ordered the appellant to pay the costs assessed at HK$282,111.00.

D. DISCUSSION

24.Mr Grossman SC, for the appellant, advanced 5 grounds of appeal, which boil down to three major contentions.  First, the Committee erred in finding that the appellant was guilty of intentional dishonesty in committing the offence which was the subject matter of the Complaint.  Second, there was a breach of natural justice in the proceedings before the Committee. Third, the Sanction was manifestly excessive.  I will consider them in turn below.

D1. Errors in finding intentional dishonesty

25.In support of this contention, Mr Grossman took two points.

D1.a. Standard of proof

26.First, Mr Grossman argued that the Committee had failed to satisfy itself to the requisite standard of proof.  He submitted that the standard of proof applicable in disciplinary proceedings is the civil standard (balance of probabilities), suitably adjusted so that the degree of proof required is commensurate with the gravity of the charge.  Since a charge of intentional/deliberate dishonesty is a serious one, the standard of proof must necessarily equate to the criminal standard.  He described it as a “heightened standard of proof”.

27.Mr Grossman cited Dr Wu Hin Ting v Medical Council of Hong Kong [2004] 2 HKC 367 in support.  There, Ma CJHC (as the Chief Justice then was), said :

“29. The question as to what is the appropriate standard of proof to apply in disciplinary proceedings is one that frequently arises. Of course, the starting point is to look at the relevant statute but, as in the case of the Medical Registration Ordinance, (Cap.161), this is often not spelt out. In the absence of any guidance provided by the relevant statute, the position can briefly be stated as follows :-

(1) The appropriate standard of proof in disciplinary proceedings depends on the charges faced by the person who is the subject of the inquiry. As Litton VP said in Tse Lo Hong v A-G [1995] 3 HKC 428, at 440D-E, ‘The standard of proof must be commensurate with the gravity of the charge’.

(2) The fact that the person charged faces serious consequences (whether a fine, suspension or some other form of punishment) is not by itself a factor which determines the standard of proof. All cases before the court are important or have important consequences for the parties before it. The standard of proof does not so much depend on the seriousness of the case or the consequences as on the seriousness of the charge. That said, it is nevertheless often the case that the more serious the charge, the more serious will be the consequences (although this is not invariably so). Accordingly, in disciplinary proceedings where suspension or being struck off are realistic penalties that can be imposed, a tribunal would not be in error in applying a stricter standard of proof than merely a balance of probabilities since the charges faced are likely to be of a more serious nature. As Culliton CJS said in Re Shumiatcher v Law Society of Saskatchewan (1966) 60 DLR (2d)318, at 328,

‘When a complaint is made against a solicitor which may result in his suspension or disbarment, effect should not be given thereto unless the grounds of the complaint are established by convincing evidence, and when the complaint involves a criminal act, by evidence establishing the grounds beyond a reasonable doubt. In the assessment of the evidence, the solicitor’s explanation should be accepted if there is a reasonable probability of it being true’.

(3) The words ‘stricter standard of proof’ involve a flexible concept. The only rule must be, as Litton VP said in the passage quoted above, the appropriate standard of proof should be commensurate with the gravity of the charge. This is not new law. The more serious the charge, the more cogent the evidence must be to prove it. The logic here is that the more serious the allegation, the less likely it is that the event occurred :- see Re H (Minors)(Sexual abuse : Standard of Proof) [1996] AC 563, at 586E.

(4) Thus, where in disciplinary proceedings, the charges amount to serious charges of a criminal nature, the requisite standard of proof will be the criminal standard of proof : see Tse Lo Hong at 442E (per Bokhary JA) and 444B (per Godfrey JA). The word ‘serious’ is an interesting qualification and I leave open for a future case the consideration of disciplinary charges which coincide with crimes but which are on the lower end of the spectrum regarding seriousness. In Tse Lo Hong, of course, involving a charge of indecent assault, the criminal standard of proof had to be applied.

(5) In the case of the present inquiry, the Medical Council applied in relation to the charges the same standard that was applied by the Medical Council in Hui Yat Ming v Medical Council of Hong Kong [2002] 1 HKC 218 (a case involving the negligent prescription of a steroid). The standard of proof was stated in these terms at 226H-I,

‘It is higher than the civil standard of balance of probability but it may not be as high as the criminal standard of beyond reasonable doubt.’

Notwithstanding the word ‘may’, what was meant is that the standard of proof was higher than a balance of probabilities but not as high as the criminal standard.  I do not quarrel with that formulation.  The charge was a serious one (and this was the view taken by the Medical Council : see paragraph 24 above) and the consequences for the Appellant if he was found guilty, were also of course serious.”

28.I pause to note that Ma CJHC’s judgment in Dr Wu Hing Ting is replicated in the Guidelines for the Chairman and the Committee on Administering the Disciplinary Committee Proceedings Rules (“the Guidelines”),[4] at para 17.  The Guidelines then go on to provide :

“18. Whilst it is important that the Committee understands the applicable legal principles, in many cases it may not be necessary for the Committee to set out in its reasons for decision the degree of proof it has determined is required in any particular case. This is because, in many cases, the evidence is likely to be such that the Committee is likely to find the case proved or not proved (as the case may be) regardless of the threshold adopted (ie potential differences in the required degree of proof will be irrelevant to the Committee's decision). In view of the difficulties in defining standards of proof adopted, it is recommended that the Committee does not, as a general rule, attempt an analysis of the required degree of proof in its reasons for decision. Instead, the Committee should confine itself to stating that it finds particular matters to have been ‘proved on the evidence’.

19. If (in an exceptional case) the Committee considers it appropriate to explain its reasoning as to the required degree of proof, unless the Committee concludes that a degree of proof equivalent to the criminal standard of beyond reasonable doubt is appropriate, it is suggested that the Committee simply adopt wording similar to the following :

‘The standard of proof applied by the Committee in the present case was the civil standard, adjusted to be commensurate with the gravity of the charge.  [The charge being serious, we have adopted the civil standard of a balance of probabilities but to a high degree.]’”

29.Apparently, the Committee approached the standard of proof in the present case with paras 17 and 18 of the Guidelines in mind.

30.The law on the standard of proof in disciplinary proceedings has further developed since Dr Wu Hing Ting.

31.In Solicitor (24/07) v Law Society of Hong Kong (2008) 11 HKCFAR 117, the Court of Final Appeal authoritatively disposed of the debate concerning the standard of proof for disciplinary proceedings in Hong Kong when Li CJ said :

“1. …The standard of proof for disciplinary proceedings in Hong Kong should be the civil standard. The proper approach to its application is explained in the judgment of [Bokhary PJ].”

After reviewing the relevant authorities, both overseas and local, including Wu Tin Hing, Bokhary PJ had this to say :

“112. The standard of proof in disciplinary proceedings must be clear and, at the same time, capable of accommodating the variety of circumstances in which it has to be applied from case to case. It must lend itself to the just and proper disposal of all those cases.

113. As we have seen, this Court has adopted and consistently applied the Re H approach. Of the things which I have said in the lower courts about the standard of proof in disciplinary proceedings, there is only one thing I would now reiterate. This is … that ‘the more serious an allegation the more compelling must be the evidence.’ But instead of speaking in terms of the evidence being sufficiently compelling to remove reasonable doubt of guilt, I would now say that the evidence must be sufficiently compelling to overcome the improbability of the serious allegation being true and thus prove it on a preponderance of probability.

114. Where maintaining standards within professions and services is involved, the courts are always mindful of their duty to protect the public….

115. As for the interests of persons facing serious allegations, due protection is afforded by the Re H approach properly understood and applied. It is to be remembered that the expression ‘beyond reasonable doubt’ is, as Lord Scarman pointed out in Khawaja’s case[5] at p 112F, ‘the formula used for the guidance of juries in criminal cases’.... Lord Scarman considered it unnecessary to import the formula ‘beyond reasonable doubt’ into the branch of English civil law concerned in Khawaja’s case. Similarly, I consider it unnecessary to import that formula into the branch of Hong Kong civil law concerned in the present case. It is unnecessary in the light of Re H.

116. In my view, the standard of proof for disciplinary proceedings in Hong Kong is a preponderance of probability under the Re H approach.  The more serious the act or omission alleged, the more inherently improbable must it be regarded.  And the more inherently improbable it is regarded, the more compelling will be the evidence needed to prove it on a preponderance of probability.  If that is properly appreciated and applied in a fair-minded manner, it will provide an appropriate approach to proof in disciplinary proceedings.  Such an approach will be duly conducive to serving the public interest by maintaining standards within the professions and the services while, at the same time, protecting their members from unjust condemnation.”

32.It was necessary for the Court of Final Appeal to re-state the law on the standard of proof in disciplinary proceedings because confusion had arisen since Re H which suggested that the standard of proof, though a civil one, might vary with the gravity of the misconduct alleged or even the seriousness of the consequences for the person concerned, resulting in a “heightened civil standard”.  The judgment of Li CJ and Bokhary PJ restores clarity and certainty to the applicable law and approach in Hong Kong.

33.In England, the House of Lord also took the opportunity to explain Re H and dispel a similar confusion in Re B (Children) [2009] 1 AC 11.  Lord Hoffmann said :

“13. … I think that the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not….

14. Finally, I should say something about the notion of inherent probabilities. Lord Nicholls said, in the passage I have already quoted [in Re H] that –

‘the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probabilities.’

15. I wish to lay some stress upon the word I have italicised. Lord Nicholls was not laying down any rule of law.  There is only one rule of law, namely, that the occurrence of the fact in issue must be proved to have been more probable than not.  Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities….”

34.In a similar vein, Baroness Hale of Richmond said :

“70. … Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.”

35.In light of the latest development of the law, both in Hong Kong and England, the notion, as advocated by Mr Grossman, that in disciplinary proceedings there exists a heightened civil standard of proof which suggests that the standard of proof may vary with the gravity of the misconduct alleged or the seriousness of the consequences for the person complained of, must be firmly rejected.  The standard of proof is the civil standard and civil standard alone.  The approach to its proper application is that as explained by Bokhary PJ in Solicitor (24/07) v Law Society of Hong Kong.

36.In any event, as noted, the Committee applied the Guidelines, which replicated Dr Wu Hing Ting, in approaching the evidence before it.  Mr Grossman’s complaint that it had not applied the appropriate standard of proof commensurate with the circumstances of this case must fail.

37.To complete the discussion on standard of proof, I would venture to suggest that consideration should be given to revise the Guidelines to reflect the current legal position on the standard of proof.

D1.b. Sufficiency of evidence

38.The second point taken by Mr Grossman concerns the sufficiency of evidence to support the Committee’s finding of intentional dishonesty.  He submitted that in light of the admitted facts and what the appellant had said in his statutory declaration, the Committee erred in failing to consider the reasonable possibility that the appellant was only negligent or reckless (rather than dishonest) in doing what he had done.  With respect, I disagree.

39.The Committee was fully aware of the appellant’s contention that he was just negligent or even reckless as opposed to being intentionally dishonest in committing the Complaint in dealing with the evidence.  And, as rightly submitted by Mr Duncan SC, for the Committee, the evidence before the Committee in support of its finding on intentional dishonesty was overwhelming.  Honest Joy needed to have two recognized professionals in order to qualify for the tender.  Ms Tso was only employed on a part-time basis by Messrs K. H. Chan & Co and not Honest Joy.  The applicant could not possibly present her as the second recognized professional.  So he presented Mr Tang instead.  In falsely representing to the Official Receiver that Mr Tang had been a director of Honest Joy for a year, the appellant had every intention to mislead the Official Receiver into believing that Honest Joy was qualified for the tender.  His act was surely intentional and dishonest.  To put it bluntly, he was lying in order to enable Honest Joy to obtain the Official Receiver’s appointment.

40.The applicant’s reliance on the oral agreement with Mr Tang is misplaced.  The agreement contemplated that Mr Tang would join Honest Joy after it became successfully appointed by the Official Receiver. But in order to be successful, the applicant had to and did deliberately misrepresent to the Official Receiver that Mr Tang had been a director of Honest Joy for a year.  It lies ill in his mouth to say that because of the oral agreement, he was just negligent or reckless in so conducting himself.

41.This brings me to the second major contention advanced by Mr Grossman.

D.2 Natural justice

42.Mr Grossman submitted that the Committee erred in failing to notify the appellant that it would be making a finding of intentional dishonesty against him before imposing the Sanction on him.  The appellant was not given a fair chance to deal with the question of dishonesty. With respect, this submission is wholly unmeritorious.

43.It is evident from the evidence adduced and submissions advanced by the parties that whether the appellant was, on the respondent’s case, intentionally dishonest, or whether he was, on his case, just negligent or even reckless remained a hot issue throughout the proceedings before the Committee.  The appellant had every opportunity to deal with the point by way of evidence and submissions.  There can be no breach of natural justice as now alleged before the court.

44.I finally come to the third main contention raised by Mr Grossman.

D3. Sanction manifestly excessive

45.Mr Grossman submitted that the Sanction is manifestly excessive.  He relied on a couple of cases where more lenient sanctions had been imposed on accountants found guilty of professional misconduct in different circumstances.

46.For my part, I do not find the reference to or comparison with the sanctions imposed in other cases helpful.  In meting out a particular sanction, the Committee and if necessary the court will take into account all the relevant circumstances of the case, including the nature of the complaint, the gravity of the offence and mitigating factors.  The appropriateness of the sanction must be case-specific and fact-sensitive.

47.It is well settled that the court will not lightly interfere with the Committee’s decisions on sanction unless the sanction is plainly wrong.  As Chu JA explained in Lie Han Ji v The Registrar of the Hong Kong Institute of Certified Public Accountants, CACV 265/2009, 9 March 2012, unreported :

“56. … In dealing with a complaint on the proprietary of sanctions passed by a disciplinary tribunal, the court has always accord great weight to the decision of the tribunal whose members possess the expertise and know the appropriate standards that are expected of members of the professional and will only interfere with the tribunal’s decision when it is clearly wrong : MacLeod v The Royal College of Veterinary Surgeons [2006] UKPC 39 at para 23.”

48.Here, the Complaint involved very serious misconduct.  The Official Receiver is in law responsible for the integrity of the liquidation process.  The tender exercise is there to ensure that only accountant firms who meet the requirements are qualified to be considered for appointment as liquidators.  To facilitate the Official Receiver’s assessment of his application, an applicant is under a duty to provide all necessary information which must be true and correct.  In fact, he has to declare and confirm that all information provided in the Form A and Form B Declarations is true and correct.  By the deliberate and dishonest misrepresentation concerning Mr Tang, the appellant had circumvented the tender requirement and misled the Official Receiver into appointing Honest Joy, an otherwise unqualified firm, as liquidator.  Plainly, his misconduct is serious enough to warrant the Sanction.  I can see no basis to disturb it.

E. DISPOSITIONS

49.For the above reasons, I would dismiss this appeal.

50.On the costs of this appeal, they should follow the event.  I would make an order nisi that the appellant should pay the respondent costs, to be taxed on a party and party basis if not agreed.

Hon Cheung CJHC :

51.Accordingly, we dismiss the appeal.  We also make an order nisi on costs as indicated in the preceding paragraph.

Mr Clive Grossman SC, Mr Osmond Lam and Mr Derek JY Chan, instructed by Messrs Sanny Kwong & Co for the respondent/appellant

Mr Peter Duncan SC, instructed by Messrs Reed Smith Richards Butler, for the complainant/respondent