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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R E A S O N S   F O R   J U D G M E N T

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Poon J (giving the reasons for judgment of the Court) :

INTRODUCTION

1.By a judgment dated 4 April 2014, this Court dismissed the appellant’s appeal against the order of the Disciplinary Committee of the Hong Kong Institute of Certificate Public Accountants.  The appellant then applied for leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.

2.On 18 September 2014, after an oral hearing, we dismissed the appellant’s application with costs.  We now hand down our reasons.

THE “GREAT AND GENERAL PUBLIC IMPORTANCE” LIMB

3.The appellant’s primary submission is that the intended appeal involves 3 questions of great general public importance :

“(1) Whether, in the context of disciplinary proceedings in which the respondent [to the disciplinary proceedings] admitted the charge/ complaint but disputed the factual basis on which sanctions ought to be imposed, the disciplinary tribunal has a duty as a matter of procedural fairness and/ or on the principles of natural justice to make and inform the respondent of its findings on all disputed facts (and the respondent a corresponding right to be informed of such findings) in order to enable submissions as to sanctions/ penalties to be made on such basis, before sanctions are considered and imposed by the disciplinary tribunal?

(Question 1)

(2) Whether the applicable test for dishonesty in the context of disciplinary proceedings involve : -

(i) a combined test with both an objective and subjective element (ie that the conduct was dishonest by the ordinary standards of reasonable and honest people and that the respondent himself was aware that by those standards his conduct was dishonest): see Byrant and another v Law Society [2009] 1 WLR 163 at 201D-F; The Law Society of Hong Kong v A Solicitor (unreported, CACV 213/2003, 19 May 2004) at §17; Twinsectra Ltd v Yardley [2002] 2 AC 164; rather than

(ii) a purely objective test (ie whether according to the ordinary standards of reasonable and honest people what was done was dishonest): see Barlow Clowes International Ltd v Eurotrust International Ltd [2006] 1 WLR 1476 at §§10, 12-16; Peconic Industrial Development Ltd v Chio Ho Cheong (unreported, HCA 16255/1999, 1 June 2006) at §184?

(Question 2)

(3) Whether the disciplinary tribunal is under a duty to adopt a consistent approach to the imposition of disciplinary sanctions such that sanctions imposed from case to case are proportional and commensurate with the gravity of the charge on the facts of each case?

(Question 3)”

4.Question 1 is basically a repetition of the appellant’s argument raised before us at the substantive hearing that he had not been given a fair chance to deal with dishonesty.  For the reasons which we gave at §§42-43 of our judgment, we roundly rejected that argument.  We do not think Question 1 involves any great general public importance as contended.

5.Question 2 is a new question of law not previously raised before us.  But Mr Lam for the appellant submitted that although it was not specifically raised, it was mentioned briefly in the course of Mr Grossman SC’s oral submissions.  With respect, we do not accept that the combined test of dishonesty as the appellant now seeks to raise in Question 2 was mentioned in the very brief exchange between the bench and senior counsel.

6.It is well established that the Court of Final Appeal would not entertain a new point not previously argued before the Court of Appeal unless there are very exceptional circumstances : see Wong Tak Yue v Kung Kwok Wai & Another (No 2) (1997-98) 1 HKCFAR 55, per Li CJ at p 66E-G and Flywin Co Ltd v Strong & Associates Ltd (2002) 5 HKCFAR 356, per Bokhary PJ paras 37-39.  The appellant has failed to show any exceptional circumstances to allow him to take this new point to the Court of Final Appeal.

7.In any event, we agree with the submission of Mr Duncan, SC, for the respondent that whatever the determination as to the applicable test, it would have no bearing on the outcome of the appellant’s intended appeal given the evidence before the Disciplinary Committee in support of its finding on intentional dishonesty : see §§39-40 of our judgment.

8.Question 3 concerns how the Disciplinary Committee approaches sanction.  It is a fact-sensitive exercise.  It does not involve any great general public importance as contended.

9.None of the 3 Questions raises any great general public importance.  The appellant’s application based on the “great general public importance” limb fails.

THE “OR OTHERWISE” LIMB

10.The appellant also seeks to rely on the “or otherwise” limb.  But he just refers to the 3 Questions in support.  He has not advanced any other reason why his application falls within the “or otherwise” limb.  In light of our conclusion above, the applicant cannot avail himself of the “or otherwise” limb.

CONCLUSION

11.For the above reasons, we dismissed the appellant’s application.  We further ordered the appellant to pay the respondent costs to be taxed if not agreed.

12.Finally, we would like to mention this.  With a view to saving costs and judicial resources, it is now the normal practice of this Court to deal with applications for leave to appeal to the Court of Final Appeal on paper with the parties’ consent.  Unless there are good reasons to do so, an oral hearing is usually not required.  Here, the parties had already lodged with the Court their full written submissions.  Mr Lam’s rather brief oral submissions did not take his case any further.  In fact, we did not even call upon Mr Duncan to respond orally.  The oral hearing on 18 September 2014 was wholly unnecessary.  The additional costs incurred for that oral hearing and the judicial time spent on it could have been avoided.  We would take this opportunity to remind the profession to adhere to the normal practice and only request for an oral hearing when it is really justified.

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