LIE HAN JI v. THE REGISTRAR OF THE HONG KONG INSTITUTE OF THE CERTIFED PUBLIC ACCOUNTANTS

CACV 265/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 265 OF 2009

(ON APPEAL FROM THE DECISIONS OF THE
DISCIPLINARY COMMITTEE OF THE HONG KONG INSTITUTE
OF CERTIFIED PUBLIC ACCOUNTANTS DATED
20 OCTOBER 2009 AND 13 MARCH 2010)

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JUDGMENT

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

1. This is the appellant’s application by Notice of Motion dated 5 April 2012 for leave to appeal to the Court of Final Appeal against the Judgment and Decision of this Court handed down on 9 March and 24 April 2012 respectively.

2. By the Judgment, we dismissed the appellant’s appeal under section 41 of the Professional Accountants Ordinance, Cap. 50 (“PAO”) against the findings, sanctions and costs order made by the Disciplinary Committee (“the Committee”) of the Hong Kong Institute of Certified Public Accountants (“the Institute”) upon a disciplinary enquiry in which the respondent is the complainant and the appellant is one of the two respondents.

3. By the Decision, we allowed the respondent’s application to vary the costs order nisi and ordered the appellant to pay the respondent the costs of the appeal and also the costs of the application to vary the costs order nisi to be taxed if not agreed on indemnity basis.

4. The appellant had on 29 September and 5 October 2012 filed an Amended Notice of Motion and a Revised Amended Notice of Motion.  No leave has been given for these amendments.  The respondent does not object to this Court having regard to the contents of all these documents for the purpose of this leave application.  

5. Applications for leave to appeal to the Court of Final Appeal in respect of civil cases are governed by section 22(1) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 (“the Ordinance”). It would appear from the Notice of Motion, Amended Notice of Motion and Revised Amended Notice of Motion (collectively “Notices of Motion”) that the appellant is relying on section 22(1)(b), which provides that:

“(1) An appeal shall lie to the Court-

(b) at the discretion of the Court of Appeal or the Court, from any other judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court, 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 for decision”.

6. The appellant relies on both limbs of section 22(1)(b).  Under the first limb, an applicant has to show that the intended appeal involves a question which, by reason of its great general and public importance ought to be submitted to the Court of Final Appeal for decision.

7. In the Notices of Motion, the appellant has not formulated any question of law for determination by the Court of Final Appeal.  He merely asserts that “[t]he questions involved in the appeal are the procedural fairness, right for a fair hearing and right to defend.”  He further asserts that the denial of his “constitutional right … to access the [Committee’s] and its documents as of right, the right for a fair hearing, the removal of a [provisional liquidator] by default judgment and the reliance thereon effectively voided all above settled laws and their standing, their application being inconsistent with common law or become uncertain, these are all matters, by reason of their great general or public importance ought to be submitted to the Court of Final Appeal for decision”.

8. What the appellant has done in the Notices of Motion and his submissions is to repeat his complaints about the Official Receiver, the conduct of the 1^st disciplinary committee, the hearing before Kwan J (as she then was) and the decision of the Committee to refuse his application to call and cross-examine the respondent and other witnesses as well as the Committee’s findings.  We have in the Judgment pointed out that the complaints against the Official Receiver, the 1^st disciplinary committee and the hearing before Kwan J do not fall within the proper ambit of an appeal brought under section 41 of the PAO. As to the findings and decision of the Committee, they are fact-specific and are peculiar to the appellant or to his case. We have also in the Judgment held that there is no merit in the appellant’s various complaints and his appeal against the Committee’s findings and decision. 

9. The appellant claims that his constitutional rights have been denied.  This, however, is not a point that had been raised in his appeal before this Court.

10. In short, having considered the Notices of Motion and the appellant’s submissions, we cannot see any question of great general or public importance in the intended appeal.

11. Turning to the second limb of section 22(1)(b), it is trite that the granting of leave under the “or otherwise” ground is an exceptional course: Chao Keh Lung v. Don Xia (2004) 7 HKCFAR 260 at para.9.

12. In the Revised Amended Notice of Motion, it is stated that the appeal ought to be submitted to the Court of Appeal for determination because the Court of Appeal has rendered the application of Rules 5 to 7 and 29 of the Disciplinary Committee Proceedings Rules (“DCPR”), section 44 of the PAO and section 205 of the Companies Ordinance, Cap. 32 void or uncertain.

13. The appellant’s arguments under this ground are effectively a repetition of his complaints about the conduct of the proceedings before the 1^st disciplinary committee, the Committee’s refusal of his application to call and cross-examine witnesses and its rejection of his argument that by reason of section 205(3) of the Companies Ordinance, upon his removal as liquidator, he has become discharged from all liabilities, including liabilities as professional accountant under the PAO. We fail to see how the rejection of these complaints and arguments (at paragraphs 40 to 51 of the Judgment) has caused the relevant provisions in the DCPR, PAO and the Companies Ordinance to become void or uncertain.  The appellant also says that there is substantial and grave injustice because this Court has not fully considered his claims and grievance. We reject this submission. There is nothing in the intended appeal for us to grant leave on the “or otherwise” limb of section 22(1) (b).

14. For the above reasons, we dismiss the appellant’s application for leave to appeal to the Court of Final Appeal.

15. We see no reason to depart from the normal rule of costs follow event. The respondent’s costs of this application should be paid by the appellant.

16. The respondent asks for costs to be paid on indemnity basis. This is an unmeritorious application. The appellant contends that this is unfair, arguing that the costs and expenses of the Institute should be treated differently from those of the Registrar. As pointed out in the Decision on Costs (paragraphs 15 and 16), the respondent acts on behalf of the Institute and defends these proceedings with funds contributed by members of the Institute. There is no reason that the respondent (and in turn the Institute and its members) should be out of pocket for the difference between the costs on party-and-party basis and that on indemnity basis. We are of the view that the appellant should pay the costs of the respondent on indemnity basis, and we so order.