PETER PO FUN CHAN v. THE HONG KONG SOCIETY OF ACCOUNTANTS AND ANOTHER

CACV 164/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 164 OF 2002

(ON APPEAL FROM HCAL NO. 637 OF 2001)

____________________

____________________

_________________________

REASONS FOR JUDGMENT

_________________________

Hon Rogers VP:

1. This was an application for leave to appeal to the Court of Final Appeal from a decision of this court (Rogers VP, Le Pichon & Stock JJA) given on 12 November 2002. The application was made under section 22(1)(b) of the Court of Final Appeal Ordinance on the grounds that the questions involved were of great general or public importance. At the conclusion of the hearing this court dismissed the application and we now give our reasons in writing.

The facts

2. The background to this matter is set out in the judgment of this court and of Hartmann J. given on 14 January 2002. The matter before the judge below was an application for judicial review in respect of 2 decisions of the respondents. The complaints made by the applicant arose in respect of the decision to constitute a Disciplinary Committee to study a complaint made by the Registrar of the Society that the applicant had been negligent in the conduct of auditing the accounts of Shanghai Land Company Limited. The point to be noted as far as this application is concerned is that there has, as yet, been no hearing of the Disciplinary Committee and that there has, as a consequence, been no facts found.

3. On this application, Mr Choy, who appeared on behalf of the applicant, sought to argue that 2 questions should be submitted to the Court of Final Appeal. Counsel refined the first question during the course of argument and in the result the questions were as follows:-

(1) Does the Kuruma inclusionary rule operate in the same way in disciplinary proceedings as it does in criminal proceedings in circumstances where the Tribunal would be condoning far graver or more dishonourable conduct than the disciplinary offence it is pursuing?

(2) What are the criteria for a disciplinary tribunal to exercise the residual discretion to exclude tainted, but otherwise admissible relevant evidence?

4. At this point it should be noted that it was not sought to argue on appeal that the Kurama decision did not represent the law in criminal and civil proceedings. As part of his argument, Mr Choy relied upon the fact that the objects of the Hong Kong Society of Accountants contain the provision that it shall "discourage dishonourable conduct and practices by professional accountants" (see section 7(h) of the Professional Accountants Ordinance, Cap. 50). The argument was put that because the judge below had considered that the probabilities supported the argument that copies of the relevant accounts had been taken from the applicant's office, this showed that there had been dishonourable conduct on the part of the person who so took them. Although the letter had been signed "an accountant", the obvious point arose that it was by no means clear that it was an accountant who took the accounts. Until facts have been found by the Disciplinary Committee no such conclusion could be drawn.

5. In my view the questions that are sought to be submitted to the Court of Final Appeal are not matters of general importance. Furthermore, I do not consider that they are matters to which I would ascribe the epithet great. In those circumstances if leave to appeal were to be given it should, in my view, be given by the Court of Final Appeal itself.

6. There are, however, other difficulties which also seem to me to make it inappropriate for leave to be given in this case. In the absence of any findings of fact by the Disciplinary Committee, it is not evident how matters of discretion could be considered. On the basis that it is said that the copies of the accounts that had been forwarded to the Registrar had been obtained wrongfully from the applicant's offices, it would be necessary to consider both the circumstances in which that was done, as well as the reasons for it. It would be almost inevitable in any case of whistle blowing where confidential documents were revealed, that some unauthorised use of the documents would have been made. Whether or not that would be culpable would have to be considered in the particular circumstances. If the discretion were to be exercised to exclude not only use of those documents, but also use of any information derived from the documents, then the matter would have to be very carefully weighed in the light of all the circumstances.

7. Inevitably, Mr Choy had to put his case on the basis that the decision would be in his client's favour no matter what the circumstances. When the case is put in that way it is to say, in effect, that there would be no discretion. In my view, it inevitably follows that even if the matter of discretion as to the use of the documents is a matter which might ultimately be considered by the Court of Final Appeal, that could only be done after the Committee had heard the matter.

8. In the absence of any hearings by the Disciplinary Committee and findings by that Committee it seems to me to be impossible for any court to embark on the second question, which would amount to an academic exercise based on uncertain facts.

Hon Le Pichon JA:

9. I agree.

Hon Yuen JA:

10. I agree.