NG SHEK WAI v. HONG KONG INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS

CACV 41/2021

[2022] HKCA 297

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 41 OF 2021

(ON APPEAL FROM HCAL NO 81 OF 2016)

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JUDGMENT

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

1.  On 20 December 2021, this Court gave its judgment (“the CA Judgment”) dismissing the Applicant’s appeal against the judgment of Wilson Chan J dated 11 January 2021. In that judgment, the Judge dismissed the Applicant’s application for judicial review of the decision made by the Professional Conduct Committee on behalf of the Hong Kong Institute of Certified Public Accountants on 3 February 2016 rejecting his complaint against a certified public accountant, Mr Lin King Wai.

2.  The Applicant now applies by Notice of Motion dated 12 January 2022 for leave to appeal the CA Judgment to the Court of Final Appeal.

3.  The basic facts of this case and the reasons for dismissing the Applicant’s appeal have been set out in the CA Judgment and will not be repeated here.  Unless the context indicates otherwise, the expressions and abbreviations as defined in the CA Judgment will continued to be used in this judgment.

4.  The Applicant puts forward four intended grounds of appeal in the Notice of Motion.

5.  Under Ground 1, the Applicant argues that: (i) the Court of Appeal repeated “boilerplate reasons”, (ii) the Court of Appeal neglected relevant facts and arguments of the Applicant, and (iii) the decision of the Court of Appeal is arbitrary.

(1) In respect of point (i), the Applicant’s complaint is that at §§26-29 of the CA Judgment, the Court of Appeal repeated the reasons given by Institute for rejecting his complaint against Mr Lin in coming to the conclusion that the Institute had given sufficient reasons for the Decision.  This complaint is based on a fundamental misunderstanding of the nature of an application for judicial review and an appeal to the Court of Appeal.  In an application for judicial review, the Court of First Instance does not carry out a merits review of the underlying decision of the body (in this case, the Institute) whose decision is sought to be reviewed.  The Court of First Instance’s task is to consider the legality, rationality and procedural propriety of the decision having regard to the grounds of judicial review raised in the Form 86.  It is not the Court of First Instance’s function to examine the merits of the decision afresh, or give its own reasons for upholding or rejecting the decision on the merits.  In an appeal to the Court of Appeal, the focus is on the grounds of appeal advanced in the Notice of Appeal and the judge’s reasons for his judgment.  The Court of Appeal does not examine the grounds of judicial review as if it were determining the application for judicial review afresh.  In the present application for judicial review, the Applicant’s grounds of judicial review in his Form 86 dated 3 May 2016 were all based on an alleged failure of the Institute to give sufficient reasons for the Decision (see §16 of the CA Judgment).  At §§26-30 of the CA Judgment, the Court of Appeal considered the reasons given by the Institute for the Decision, and came to the conclusion that they were sufficient reasons.  We do not see how it can sensibly be argued that the Court of Appeal should not have referred to the Institute’s reasons for the Decision when examining their sufficiency in a reasons challenge.

(2) In respect of point (ii), what facts are relevant depends on the nature of the challenge and the grounds of appeal.  In the CA Judgement, the Court of Appeal referred to the relevant facts necessary for a proper consideration of the issues arising on the appeal.  There were 8 grounds of appeal which were set out at §21 of the CA Judgment.  They were examined individually in the CA Judgment from §31 onwards.  The Court of Appeal is under no duty to examine or refer to each and every minute argument raised by the Applicant, many of which are, as noted in §32(3) of the CA Judgment, irrational or unintelligible.

(3) In respect of point (iii), the complaint that the CA Judgment is “arbitrary” is based on an allegation that Au JA has “ruled that the relevancy of Mr Lin’s response shall be decided in the substantive hearing”.  As mentioned above, the Applicant’s challenge was based entirely on the alleged insufficiency of the Institute’s reasons for the Decision.  This issue was examined by both the Judge (at §§59-70 of his judgment) and by the Court of Appeal (at §§26-30 of the CA Judgment).  Mr Lin’s response to the Applicant’s complaint against him is irrelevant to the issue of whether the Institute’s reasons for the Decision are sufficient.  The Applicant’s complaint is based on his misconceived notion that the Institute had come to the view that there was prima facie evidence of misconduct by Mr Lin.  This ground of appeal has been dealt with in the CA Judgment at §33.

6.  Under Ground 2, the Applicant argues that the Court of Appeal allowed the Institute to raise new arguments/points, or raised new arguments/points on its own motion to which he was not given a chance to respond.

(1) The Applicant’s first complaint under this ground is that the Court of Appeal stated, at §32(3) of the CA Judgment, that some of his arguments were irrational or unintelligible, but the Institute did not make this blanket claim.  That many of the Applicant’s arguments, in his Notice of Appeal and written submissions, are irrational or unintelligible is plain to see.  Some of them were dealt with in the CA Judgment when considering the grounds of appeal raised by the Applicant (eg Grounds 2 and 6).  Whether or not the Institute considered the Applicant’s arguments, or some of them, as irrational or unintelligible is neither here nor there.

(2) The Applicant’s second complaint under this ground relates to what the Court of Appeal said at §30 of the CA Judgment: “In considering whether the reasons given by the Institute for the Decision are adequate or sufficient, it is important to bear in mind that the issue is not whether the Decision is reasonable or correct. The present judicial review is not about the rationality, still less the correctness, of the Decision … Mr Ng may not agree with those reasons, but that is another matter”.  The Applicant says that even the Institute submitted that “merit challenge is allowed when the decision is aberrant”.  In fact, the Institute’s submission was that “The possible relevance of the underlying merits of the underlying complaint is very limited when it comes to reasons challenge.  The merits may, exceptionally, be relevant inasmuch as the relevant decision is found to be aberrant on its face” (see §6 of the Respondent’s Skeleton Submissions dated 12 November 2021).  In other words, the underlying merits of the decision under review is generally not relevant in a reasons challenge, but may exceptionally become relevant where the decision is aberrant on its face. Since the Decision is not aberrant on its face, the Applicant’s complaint fails.

(3) The Applicant’s third complaint under this ground concerns the Court of Appeal’s view at §35 of the CA Judgment that “the preferable approach would be to take into account the Section E Considerations in an overall assessment of the adequacy of the reasons given by the Institute for the Decision”, instead of the Judge’s approach of considering first whether the reasons given were adequate and then considering whether, having regard to the Section E considerations, the Institute was under any duty to provide more detailed reasons than those already given.  The fact that the Institute supported the Judge’s approach, or did not suggest any alternative approach, cannot affect the Court of Appeal’s own analysis of the matter.

(4) The rest of the Applicant’s complaints concern the Court of Appeal’s reasons for rejecting the various grounds of appeal raised by the Applicant, and amounts to an attempt to re-argue the appeal in the present application for leave to appeal.

7.  Under Ground 3, the Applicant questions whether “disagreement with the given reasons (in particular boilerplate ones) is challenge on merit or it shall be the basis of any challenge on the adequacy of the given reasons and whether Judicial Review (“JR”) grounds of an applicant shall be treated rigidly”.  In respect of the first point, it is trite that a mere disagreement with the reasons for a decision is a not a ground for judicial review.  All the more so where the challenge is based on an alleged inadequacy or insufficiency of the reasons for the decision (ie a reasons challenge).  In respect of the second point, the Applicant is bound by the grounds raised in his Form 86.  Proper discipline must be observed in an application for judicial review, regardless of whether an applicant is legally represented or not.

8.  Lastly, under Ground 4, the Applicant complains that the CA Judgment is arbitrary because the Court of Appeal “re-opened the issue of standing when there is no new evidence and R did not challenge [his] standing”. This ground can be disposed of shortly on the basis that the appeal was dismissed, not because of any lack of standing on the part of the Applicant, but because none of the 8 grounds of appeal had merit.

9.  Under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, an appeal shall lie to the Court of Final Appeal at the discretion of, inter alia, the Court of Appeal in any civil cause or matter if, in the opinion of the Court of Appeal 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 of Final Appeal for decision.

10.  No question of great general or public importance is involved in the proposed appeal. We are satisfied that the intended appeal has no merits and no reasonable prospect of success.  There is also no basis to grant leave to appeal on the “or otherwise” limb in s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.  In any event, it is the practice of this court to defer to the Appeal Committee of the Court of Final Appeal in respect of any question as to whether leave to appeal should be granted on the “or otherwise” ground.

11.  Accordingly, the application for leave to appeal is refused and the Notice of Motion is dismissed with costs to the Institute to be taxed if not agreed, with certificate for 2 counsel.