PETER PO FUN CHAN v. WINNIE C W CHEUNG AND ANOTHER

HCAL162/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.162 OF 2005

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DECISION

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1.  On 20 December 2005, the applicant commenced these proceedings against the respondents in their respective capacity as the Registrar of Hong Kong Institute of Certified Public Accountants (the  “Institute”) and the Chairman of the Registration and Practising Committee of the Institute.  The applicant seeks an order of mandamus to compel the Registrar to reinstate his membership and to issue to him a practising certificate.  He also asks for an early date to hear his judicial review application.

Events before the hearing of the leave application

2.  This decision is in respect of the application for leave to judicial review. However, before dealing with it, it is necessary to set out the events before the hearing of the leave application so as to provide a better understanding of the case and of the costs issue.

3.  Although application for leave to judicial review is made ex parte and may be considered without a hearing, in this instance having regard to the Form 86A and the affirmation filed by the applicant, which do not set out the factual background and issues clearly and fully and that the applicant requests an expedited hearing if leave is granted, I consider that an oral hearing is required and that an opportunity should be given to the respondents to appear and be heard.

4.  Accordingly, on 23 December 2005, I directed for the case to be listed for a hearing of the leave application and/or for directions.  The hearing was fixed for 27 January 2006.  The applicant and the respondents were given notice of the hearing by letter of the same date. 

5.  On 19 January 2006, the applicant wrote to the court seeking to adjourn the hearing to the end of February or early March 2006.  He explained that his application for re-admission would be discussed at the Council meeting on about 13 February 2006 and it might be possible that his re-admission would be considered favourably.

6.  By letter of the same date, the Court informed the applicant that he should first approach Messrs Johnson Stokes & Master (“JSM”), who had filed Notices to Act for both respondents, to seek their view on the proposed adjournment, and failing agreement, he might consider making a formal application for adjournment at the hearing.

7.  On 25 January 2006, the applicant filed a Notice of Discontinuance seeking to wholly discontinue the proceedings herein.  On the same date, JSM wrote to the Court (with copy to the applicant) pointing out that they had instructed counsel and he had prepared a skeleton submission, a copy of which was enclosed with the letter.  JSM indicated that the applicant should not be allowed to discontinue the proceedings without leave and without dealing with the question of costs.

8.  On 26 January 2006, the applicant lodged with the court a bundle of submissions together with a bundle of documents.  In the submissions, the applicant sought to explain the reasons for the Notice of Discontinuance.  In brief, he said the decision to discontinue was not because he could not support his application, but because the Court of Final Appeal refused to accept his Petition against the earlier dismissal of leave to appeal by the Appeal Committee, and also because he viewed the Institute with “fear and reverence”.

9.  In the submissions, the applicant further advanced arguments to support his application for leave to judicial review and in opposition to the skeleton submissions of the respondents’ counsel.  The applicant asks that he be given leave to judicial review.

10.  At the hearing of 27 January 2006, the applicant confirmed that he was proceeding with his application for judicial review and made oral submissions in support of his leave application.

The facts of the application

11.  It would appear there is a history of litigations leading to the present application.  However, as noted above, the materials filed by the applicant do not provide clear details of the background.  What I can decipher from the materials filed and lodged by the applicant for the leave application and from reading the related judgments, the pertinent facts appear to be as follows.

12.  The applicant has a long practice as a professional accountant.  On 15 September 2003, the Disciplinary Committee of the Institute found two charges of professional misconduct proved against the applicant.  The Disciplinary Committee ordered that the applicant be removed from the Register of Professional Accountants (“the Register”) for a period of six months in addition to payment of a penalty and costs.

13.  The applicant appealed against the decision of the Disciplinary Committee to the Court of Appeal.  The appeal was dismissed on 4 February 2005: see the Judgment of the Court of Appeal in CACV 299/2003 & CACV 87/2004 delivered on 4 February 2005.  The Court of Appeal further dismissed his application for leave to appeal to the Court of Final Appeal.

14.  The applicant applied to the Court of Final Appeal for leave to appeal.  The Acting Registrar of the Court of Final Appeal issued a summons under Rule 7 of the Hong Kong Court of Final Appeal Rules, cap.484 (“Rule 7”), asking the applicant to show cause as to why his application should not be dismissed under that Rule.  On 17 June 2005, having considered the applicant’s written submissions, the Appeal Committee ordered under Rule 7 that the applicant’s application for leave to appeal be dismissed.  The Order was sent to the applicant and the Institute by post and posted on the notice board of the Court of Final Appeal.

15.  By letter dated 24 June 2005, the Institute advised the applicant that upon the Order of the Appeal Committee, which was a final determination of his appeal, the applicant’s name had been removed from the Register with effect from the date of the Order, namely, 17 June 2005.

16.  By letter dated 2 August 2005, the applicant applied to the Institute as a member and for restoration of his name to the Register, with effect from 17 December 2005.

17.  By letter dated 21 September 2005, the Institute informed the applicant that as he was not eligible for membership during the period of removal, the Registration and Practising Committee (“the Committee”) had resolved not to consider his application until the six-month removal period had expired.

18.  By letters dated 30 September and 5 October 2005, the applicant requested the Institute to undergo an earlier consideration of his application and/or to apply to seek direction or sanction from the Court to do so. 

19.  Then on 20 December 2005, the applicant filed the application for leave to apply for judicial review.

Grounds for the application

20.   The applicant raises three grounds.  They are:

(1)   The Court of Final Appeal acted in breach of Article 10 of the Bill of Rights Ordinance (“BORO”), which requires any judgment to be made public. Accordingly, the Order of 17 June 2005 is void and of no effect.

(2)   The Registrar is mistaken as to the effective date of his removal, that it should be the day after the Order and not the date of the Order (i.e. 17 June 2005).

(3)   The decision of the Committee not to consider his application for restoration to the Register until after the expiry of the removal order is wrong, Wednesbury unreasonable and ultra vires.

Reasons for decision

         (1) Ground 1

21.  Article 10 of BORO provides that:

“All persons shall be equal before the courts and tribunals. In thedetermination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.”

The underlined part is what the applicant relies upon in support of his first ground.

22.  The applicant’s case is that in order to meet the requirement that all judgments shall be made in public, the Appeal Committee should have delivered its decision and made the Order in open court.  He argues that it is insufficient to mail the Order to the parties and to post the Order on the public notice board of the Court.

23.  The applicant also relies on a recent event in support of his argument that the Court of Appeal made what he called a procedural error.  What happens was this. Lately, the applicant sent to the Acting Registrar of the Court of Final Appeal a Petition, in which he asserted, among other matters, that the Order of the Appeal Committee was defective, being in breach of Article 10 of BORO, and sought to have it set aside.  By letter dated 13 January 2006, the Acting Registrar informed the applicant that the Court of Final Appeal had no jurisdiction to accept the Petition.  In these proceedings, the applicant contends that as the letter did not assert the lawfulness of the manner in which the Appeal Committee gave its Order and did not deny it had made a mistake, he is convinced that the Court of Appeal is wrong.

24.  In my view, the applicant’s point is unarguable.  The Appeal Committee’s Order was made under Rule 7.  Rule 7 states as follows:

“(1)   Where the Registrar is of the opinion either on the application of the Respondent or of his own motion that an application discloses no reasonable grounds for leave to appeal, or is frivolous or fails to comply with these Rules, he may issue a summons to the applicant calling upon him to show cause before the Appeal Committee why the application should not be dismissed.

(2)     The Appeal Committee may, after considering the matter, order that the application be dismissed or give such other directions as the justice of the case may require.”

25.  Under Rule 7, where the Appeal Committee considers that the application for leave to appeal is objectionable, the practice is to dismiss the application without an oral hearing and without giving any reasons for the decision.  The order of the Appeal Committee will be posted to the parties by mail and posted on the notice board in the public precinct of the Court of Final Appeal: see Chow Shun Yung v. Wei Pih & Another (2003) 6HKCFAR 299 at para.8 and Hong Kong Civil Procedure 2006 vol.2 para.B/7/1 at p.7.          

26.  The purpose of Rule 7 is to enable applications for leave to appeal that are objectionable on the grounds set out under the Rule to be disposed of on paper so as to minimise wastage of the court’s and the responding party’s resources: see Chow Shun Yung v. Wei Pih & Another at paras.13-15.

27.  There is no basis for the applicant’s argument that the Order dismissing the application has to be pronounced in open court before it can be regarded as having been made in public.  Quite the contrary, the present practice of posting up the Order on the notice board in the public precinct of the Court of Final Appeal already serves to make the decision and the Order public.

28.  The applicant’s reference to the Acting Registrar’s letter dated 13 January 2006 presupposes that his Petition had been read and considered by the Acting Registrar or the judges of the Court of Final Appeal.  This is unwarranted.  The fact is that the Petition was rejected for want of jurisdiction to accept it.

          (2) Ground 2

29.  The applicant’s second ground is that his removal should have commenced on 18 June and concluded on 17 December 2005.  The importance of this to him is that he had on 17 June 2005, before receipt of the Order of the Appeal Committee, signed off an auditor’s report.

30.  In his submissions, Mr Carolan informed the court, on instructions from the Institute, that the Institute would not take any action against the applicant in respect of any professional work he had carried out on 17 June 2005, and the Institute would not dispute that the removal order ended on 17 December 2005.  In the circumstances, this ground has become academic.

31.  That aside, in determining the effective date of the removal order, what is important must be the wordings of the order of the Disciplinary Committee, which stated that the applicant should be removed “for a period of six months from 23 October 2003, or the date of final determination of any appeal against this order” by the applicant (emphasis supplied).  On a plain reading of the order, the removal should have commenced on the date of the Order of the Appeal Committee, being the date of final determination of the applicant’s appeal against the disciplinary order. The applicant’s reference to “fraction of a day” rule or the judgment of Lord Ether in reckoning time is irrelevant in view of the plain and unambiguous wordings of the disciplinary order. 

32.  In short, the applicant has no prospect of obtaining any relief under this ground.

          (3) Ground 3

33.  The applicant’s third ground is that the Professional Accountants Ordinance, cap.50 (“PAO”) does not prohibit consideration of his re-admission prior to the expiry of the six-month removal order.

34.  Section 39 of PAO provides that:

“(1)   A person whose name has been removed from the register under the provisions of this Ordinance may apply to the Council for the restoration of his name to the register.

(2)   The Council may, after making such inquiry as it may consider necessary, reject an application under subsection (1) or allow it, subject to such conditions if any as it may think fit to impose.

(3)   The Council shall, if it allows an application under subsection (1), order the Registrar to restore the name of the applicant to the register and thereupon the Registrar shall restore the name accordingly.”

35.  Clearly, the section contemplates the making of an application for restoration to the Register by a person who had been removed from the Register, as opposed to automatic restoration upon the end of the removal period.  The applicant’s argument that no separate application for restoration is required when his six-month period ended is contrary to the wording and intention of the section.  It is further to be noted that under section 39(2), the Council retains a power to refuse or allow the restoration application.  At any rate, the applicant himself saw fit to make an application for restoration by his letter dated 2 August 2005.

36.  As submitted by Mr Carolan, the applicant had no entitlement to be restored to the Register on the expiry of the removal order.  His only right is to apply for restoration.  Before the end of the six-month period, the applicant was not eligible for restoration and there was no basis for the Committee to consider his restoration.  Accordingly, the Committee’s decision not to consider his application before the expiry of the removal order cannot be said to be ultra vires or Wednesbury unreasonable.  

37.  As a matter of fact, the applicant had since re-submitted his application, which would be considered by the Committee at its three monthly meeting on 13 February 2006.  The view of the Committee would be reported to the Council and the Council would make its decision at the meeting on 1 March 2006.  In the light of this, ground 3 is clearly academic.  Hence, even if the applicant were to have an arguable case under this ground, the court in its discretion would not grant any relief.

Conclusion

38.  On an application for leave to judicial review, the test is whether the materials before the court have disclosed matters which on further consideration might demonstrate an arguable case for the grant of the relief sought: Ho Ming Sai & others v. Director of Immigration [1994] HKLR 21.

39.  For the reasons set out above, the applicant has failed to meet the test.  There is no prospect of the court granting any of the relief sought.  The judicial review application is bound to fail.  Accordingly, the leave application is dismissed.

Costs

40.   The normal rule, which the applicant does not dispute, is for costs to follow event. However, the applicant points out that he had previously filed a Notice of Discontinuance in another set of proceedings against the Institute, to which the Institute raised no objection.  Mr Carolan was unable at the hearing to provide the case reference of the previous proceedings.  Subsequently after the hearing, JSM by letter informed the court that it was a Writ action commenced on 12 July 2005 by the applicant against the Institute (HCA 1334 of 2005).  The Institute invited  the applicant to discontinue it, failing which it would apply to have it struck out.  Eventually, the applicant filed the Notice of Discontinuance on 19 July 2005.  JSM explained that in the circumstances and since little legal costs were incurred, the Institute did not seek to recover costs from the applicant.

41.  The applicant wrote on 3 February 2006 in response to JSM’s letter.  In the letter, he said, among other matters, he expected similar waiver of costs by JSM.  In any case, he asked for the grant of leave to judicial review and reiterated his grounds for the application.

42.  I do not consider that the previous case of HCA 1334/2005 afford any ground to depart from the normal rule.  Order 21 rule 2 of Rules of the High Court has no application to judicial review proceedings.  Unlike in a Writ action, the filing of a Notice of Discontinuance is inappropriate.  Further unlike the previous case, which was withdrawn very shortly after its commencement and before the Institute took any step in the proceedings, the applicant has proceeded all the way with his leave application.  In any case, there is no basis for the applicant to expect the respondents, who are individuals though serving the Institute, to waive their legal costs incurred.

43.  There is therefore an order that the applicant pays the respondents the costs of these proceedings, to be taxed if not agreed.