PETER PO FUN CHAN v. WINNIE CW CHEUNG AND ANOTHER

HCMP 498/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 498 OF 2006

(ON AN INTENDED APPEAL FROM HCAL NO. 162 of 2005)

______________________

______________________

Reasons for Decision

______________________

1. I granted extension of time to the applicant to appeal against the judgment of Chu J dated 6 February 2006.  These are my reasons.

Background

2. The applicant applied before Chu J for leave to apply for judicial review against the Chief Executive and Registrar of Hong Kong Institute of Certified Public Accountants (‘the Institute’) and the Chairman of the Registration and Practising Committee of the Institute.

3. Chu J refused leave on 6 February 2006.  Under Order 53 rule 3(4) of the Rules of the High Court, the applicant may appeal against the refusal for leave within 10 days of the order of refusal.  Before the expiration of the appeal period, the applicant applied for extension of time to appeal.  The judge treated the application as constituted by the applicant’s letter of 11 February 2006.  The applicant acted in person before the judge.  The hearing of the application to extend time was heard on 6 March 2006 and the judge refused to grant time to the applicant to appeal.

The application for extension

4. In his summons of 13 March 2006, the applicant asked for, among other things, extension of time to appeal against the order of 6 February 2006 to be granted by this Court.  Order 59 rule 15 enables the Court of Appeal to deal with the application notwithstanding the applicant has previously applied for an extension in the court below.  A single judge of the Court of Appeal has jurisdiction to deal with the application by Order 3 rule 5(4).

The merits

5. The judge has most helpfully identified the issues in her judgment.  The applicant’s case before the judge was whether he needs to apply for re-registration under the Professional Accountants Ordinance (Cap. 50) after he has been suspended from practice and whether he can only make the application after the expiration of the suspension.

6. While the Court of Final Appeal in Medical Council of Hong Kong v. Chow Siu Shek David [2000] 2 HKC 428 in construing a not dissimilar provision in the Medical Registration Ordinance (Cap. 161) was of the view that there was no automatic right of re-registration, it also held that if the practitioner does not have criminal conviction or has not committed other professional misconduct then ‘he would in the normal way be entitled confidently to expect that his name would be restored to the Register once his period of removal has elapsed’.

7. Mr. Stock, counsel for the applicant, does not concede on the interpretation of the legislation.  The ground now advanced by him is that the applicant has a legitimate expectation that his application for re-registration should be dealt with expeditiously.  Although this was not specifically put forward before the judge the substance of the applicant’s complaint has always been that there was delay in restoring his name as a practitioner.

8. In this case the suspension took effect on 17 June 2005 and expired on 16 December 2005.  Because of the decision the applicant was not able to resume practice on 17 December 2005.  The relevant committee of the Institute would originally consider the applicant’s application on 13 February 2006 but then deferred it to April 2006 in order to consider two matters which the applicant said to be irrelevant and one of which was already conceded by counsel for the Institute at the hearing below that it would not be used against the applicant. 

9. Although the applicant has by now been allowed to be re-registered, he clearly has shown sufficient interest to institute proceedings against the Institute arising from the delay in considering his application.  These are not academic questions but real matters that affect the professional practice of the applicant.  Without finally deciding on this issue, it does appear that he has satisfied the threshold that he has a potentially arguable case in his application for leave to apply for judicial review. 

Other factors

10. As indicated in the judgment of the judge the delay was relatively short.  As to the reason of delay, I have to disagree with any suggestion that the applicant was somehow misled by what the judge said in correspondence about the appeal period.  The judge had clearly stated that he had 10 days to appeal.  The probable reason why he did not lodge the appeal within time was to wait the decision of the Institute which was originally expected to be given on 13 February 2006.  The objective evidence pointed towards the applicant wishing to pursue the appeal.  There was no evidence showing that the respondents were prejudiced by the delay.

Orders

11. Accordingly I granted extension of time to appeal.  The notice of appeal is required to be served and filed within seven days.  Costs of the application be in the cause of the appeal.

12. The applicant has issued a summons to amend Form 86A.  Mr. Stock accepted that this matter should be dealt with by the Full Bench of this Court.  Accordingly I ordered the summons to be adjourned to the Full Bench to be heard at the same time of the appeal.  Costs of the summons was reserved.