LAW FEI SHING v. THE HONG KONG INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS

HCMP 748/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 748 OF 2015

(ON AN INTENDED APPEAL FROM HCAL NO 132 OF 2014)

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J U D G M E N T

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Hon McWalters JA (giving the judgment of the court):

1.  The applicant applied for leave to apply for judicial review on 10 October 2014 and that was refused by Zervos J on 2 February 2015. The applicant wished to appeal that refusal but was late in doing so. The applicant therefore sought an extension of time in which to appeal and at the same time also applied to amend his Form 86. On 21 April 2016 we refused both applications.

2.  The applicant now applies for leave to appeal to the Court of Final Appeal pursuant to section 22(1)(b) of the Court of Final Appeal Ordinance, Cap 484.  The grounds of the application are that there is involved in the appeal “questions, which by reason of their great general or public importance, ought to be submitted to the Court of Final Appeal for decision.”

3.  The two questions are:

“a. Whether, in circumstances in which the Registrar receives a complaint under Section 34(1) of the Professional Accountants Ordinance, Cap 50 (‘the Ordinance’) (‘the original complaint’) and the Registrar subsequently submits facts to the Council of the Hong Kong Institute of Certified Public Accountants (‘the Council’) under Section 34(1A) of the Ordinance, it is nevertheless mandatory for the Registrar to refer the original complaint to the Council and mandatory for the Council to consider the original complaint.

b. Whether, in circumstances in which the Registrar submits facts to the Council under Section 34(1A) of the Ordinance, it is nevertheless mandatory for the Registrar to refer to the Council, and mandatory for the Council to consider, complaints made under Section 34(1) of the Ordinance, which have not been abandoned or withdrawn, before or together with the facts submitted by the Registrar.”

4.  In accordance with directions by Master Simon Leung, Registrar of Civil Appeals, on 31 May 2016 this application was determined on papers filed by the parties without an oral hearing.

The issues before the Court of Appeal

5.  For a fuller understanding of the facts of this case recourse should be had to our judgment.  The applicant, a Certified Public Accountant applied to judicially review a decision of the respondent which is a statutory body created by the Professional Accountants Ordinance, Cap 50 (“PAO”) to regulate the practice of the accountancy profession.  The respondent received a complaint of professional misconduct from Mr Lee Kwong On against the applicant and proceeded to investigate it.

6.  The statutory provisions regulating the investigation of misconduct provide, under section 34(1) of the PAO, for the mandatory referral of a complaint by the Registrar to the Council.  Additionally, under section 34(1A) of the PAO, where the Registrar becomes aware of facts which may constitute misconduct he can, proactively, submit those facts to the Council.

7.  Notwithstanding that a complaint was received from a known individual the Registrar, purporting to act under section 34(1A) of the PAO, distilled facts from that complaint and submitted those facts to the Council.

8.  In correspondence with the respondent the applicant challenged the jurisdiction of the Registrar to act in this way. That challenge was rejected and the Council proceeded to the next stage of the process by referring the allegation of misconduct to the Disciplinary Committee. 

9.  The applicant then applied for leave to judicially review the decision of the Council that it said was made “about a short while before 11 September 2014 to refer the complaint made by Mr Lee Kwong On to the Disciplinary Panels.”  The Form 86 was filed on 10 October 2014.

10.  The grounds for judicial review were firstly that the decision of the Council was ultra vires because the Registrar could not reformulate the complaint of Mr Lee.  Allied with this ground it was also argued that the Registrar could not take over and reformulate Mr Lee’s complaint under section 34(1A) of the PAO.  Secondly, it was said that this decision was reached as a result of procedural unfairness in that the Council failed to give adequate reasons for proceeding under section 34(1A) and failed to give adequate reasons for its decision to refer the Registrar’s complaints to the Disciplinary Panels.  

11.  On each of these grounds Zervos J rejected the arguments of the applicant.

12.  However, in deciding the application on the papers Zervos J denied the applicant the oral hearing which he had requested in his Form 86.  But, this would not be enough, on its own, to entitle the applicant to succeed on his appeal and he had still to satisfy the Court of Appeal that his intended appeal had a reasonable prospect of success.  It then became necessary for this court to examine the merits of the applicant’s arguments.

13.  However, the applicant revised his arguments on appeal and did not advance the same arguments before the Court of Appeal that were advanced before Zervos J.  Now the complaint became that the Registrar filtered the original complaint and in presenting only that filtered or edited complaint to the Council he was acting in breach of his statutory duty.  In so doing, it was said, the Council acted ultra vires the Ordinance, its decision was tainted by Wednesbury unreasonableness and it breached its duty to act fairly to the applicant.  

14.  We were mindful that it was inappropriate for the Court of Appeal to exercise an original jurisdiction on a basis different from that advanced before the judge whose judgment is before it on appeal.  Nevertheless, we said that even if we were to give consideration to these reformulated grounds we would reject them as not having any reasonable prospect of success.

15.  Whether in their original or reformulated form the grounds focused on the decision of the Council.  We decided that section 34(1A) allowed the Registrar to present his complaint to the Council.  Once this complaint was lawfully before the Council, the Council was duty bound to make a decision in respect of it and in deciding to refer this complaint to the Disciplinary Panels, it was doing no more than carrying out its statutory duty.

16.  In respect of the Wednesbury unreasonable ground we were of the view that the applicant had not been able to establish any of the matters of which he complained.

17.  For these reasons we refused the application to amend the Form 86 and refused the application for an extension of time in which to appeal.

The applicant’s submissions

18.  The applicant asserts that it did not reformulate its first ground of review but merely elaborated upon it.

19.  The applicant argues that whether the Council receives the actual complaint under section 34(1) or the substance of the complaint under section 34(1A) of the PAO is not relevant so long as the Council does not receive only a filtered or edited version of the complaint.

20.  If what is received by the Council is only a filtered or edited version of the complaint then the Council will fail to perform its statutory obligation to consider the complaint.

21.  In respect of the second ground of relief the applicant argues that the reasons he was unable to demonstrate that the respondent was unaware of all of the elements of the complaint was because he does not have access to the respondent’s internal documents. Furthermore, it is argued that a failure to consider certain elements of the complaint is a failure to carry out a mandatory statutory requirement.

22.  Finally, it is contended that as the application relates to the administration of justice and the fairness of procedures adopted by a public body, the issues raised should be considered matters of great general or public importance.

23.  The applicant also argues that his application allows for an important preliminary issue to be resolved, namely whether the rule in HLF and MTC and LHN (Intervener) (2004) 7 HKCFAR 167 that a refusal of leave to appeal did not bring into being a judgment of the Court of Appeal should be extended to a dismissal of an appeal against a refusal to grant leave to apply for judicial review. 

The respondent’s submissions

24.  The respondent submits that the two questions are in substance the same and neither qualifies as being a question of great general or public importance.  It argues that both are fact sensitive to the circumstances of this particular case with no reason to believe that the same scenario is likely to arise in other cases.

25.  The respondent submits that the Court of Appeal judgment accepts that there exists a statutory obligation to refer a complaint to the Council and so there is nothing in the Court of Appeal judgment which is inconsistent with the applicant’s proposition which underlies the proposed questions.  All that the Court of Appeal did was to address the particular facts of this case and its judgment did not give rise to any important point of principle.

Discussion

26.  The preliminary point does not arise.  This was not an appeal from a refusal of leave.  The only matter that was before the Court of Appeal was a summons applying for an extension of time in which to appeal and that was the application that was refused.

27.  The application for judicial review challenges the decision of the Council in referring the Registrar’s section 34(1A) complaint to the Disciplinary Panels.  At the hearing the applicant sought to amend this to the decision of the Council to refer the complaint it had received from the Registrar to the Disciplinary Panels.

28.  The focus of the judicial review was on the decision of the Council.  The decision of the Registrar to refer under section 34(1A) and not refer the original complaint under section 34(1) only had relevance to the decision of the Council if it could be shown that in some way it impacted upon the legality of the Council’s decision in respect of the Registrar’s section 34(1A) referral.  

29.  Once it is accepted that what took place, as a matter of fact, was that the Registrar referred his complaint to the Council under section 34(1A) and that as a matter of law the Registrar was entitled to do so, then, as we held, the Council was lawfully seized of the complaint and duty bound to make a decision in respect of it. 

30.  However, the focus of the two questions which are said to be of great general or public importance is not on the legality of the decision of the Council but on the legality of the decisions of the Registrar.  Whether, in addition to the section 34(1A) referral the Registrar should also have made a section 34(1) referral of the original complaint is not a matter which arose out of the appeal or was necessary for us to decide.  The judicial review, in its original or proposed amended form, did not challenge either the decision of the Registrar to make a referral under section 34(1A) or his decision, impliedly made, not to refer the original complaint under section 34(1).

Conclusion

31.  For these reasons we refuse the application.