HONG KONG INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS v. NG KWOK CHING

CACV 42/2019

[2022] HKCA 447

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 42 OF 2019

(ON APPEAL FROM PROCEEDINGS NO D-16-1226P, M119510)

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JUDGMENT

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

1.  On 9 December 2021, this Court gave a judgment (“the Judgment”) dismissing Mr Ng’s appeal against the order of the Disciplinary Committee of the Hong Kong Institute of Certified Public Accountants contained in its “Order & Reasons for Decision” dated 28 December 2018, in which the Disciplinary Committee found two complaints preferred by the Practice Review Committee of the Hong Kong Institute of Certified Public Accountants against Mr Ng proven, and imposed the following sanctions on him:

(1)  cancellation of Mr Ng’s practicing certificate effective on the 42^nd day of the order, and an order that a practicing certificate should not be issued to Mr Ng for a period of 12 months commencing from the 42^nd day after the date of the order, under s 35(1)(da) and (db) of the Professional Accountants Ordinance, Cap 50 (“the Ordinance”);

(2)  a reprimand under s 35(1)(b) of the Ordinance; and

(3)  a penalty of HK$50,000 under s 35(1)(c) of the Ordinance.

The Disciplinary Committee also ordered Mr Ng to pay the Practice Review Committee’s costs and expenses of and incidental to the disciplinary proceedings in the sum of HK$55,000 under s 35(1)(iii) of the Ordinance.

2.  The basic facts of this case and the reasons for the Court’s decision are set out in the Judgment and will not be repeated here.

3.  Mr Ng filed a Notice of Motion on 4 January 2022 seeking leave to appeal the Judgment to the Court of Final Appeal without having given any notice of intended application for leave to appeal.  Mr Ng subsequently filed and served a notice of intention to appeal on 13 January 2022. Since the Complainant’s solicitors have indicated that they do not object to an application for extension of time by Mr Ng to file a notice of intended application for leave to appeal, we accept the late filing of the same by Mr Ng on 13 January 2022 and dispense with the need for any formal application by Mr Ng for an extension of time to do so.

4.  In the Notice of Motion, Mr Ng complains about this Court’s ruling at §23 of the Judgment:

“Ground (6) complains that the Disciplinary Committee failed to go over the relevant documentation with Mr Ng at the disciplinary hearing, and ‘ambushed’ him with new questions. As clearly stated in the Notice of Commencement of Proceedings dated 24 January 2018 served on Mr Ng, the purpose of the oral hearing was to allow the Disciplinary Committee to question the parties and clarify matters. In our view, the Disciplinary Committee was under no duty to go over any documentation with Mr Ng, and was entitled to ask him questions, which we are satisfied were relevant and proper ones.”

5.  At §10 of the Notice of Motion, Mr Ng raises the following question as being a question which (according to him), by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision:

“Whether the Disciplinary Committee should have such wide power and as such will infringe the principle of ‘breach of natural justice’ and by rules which expressly provided that the strict rules of evidence did not apply and the Disciplinary Committee might receive any material and attached such weight to that material, as it considered appropriate… Neither the Complainant nor the Disciplinary Committee was obliged to put any document to him (Applicant).”

6.  Mr Ng argues that with “such power being given to the Disciplinary Committee, the Applicant will never get a fair hearing or trial in any event.  The Court of Appeal further erred in paragraph 23 of its judgment above by agreeing that the Disciplinary Committee should have such wide power.  It is also submitted that by giving such wide power to a professional body, any future appeal on disciplinary matters will be rendered ‘fruitless’ (§11 of the Notice of Motion).

7.  As mentioned in §11 of the Judgment, it was expressly stated in the Notice of Commencement of Proceedings given by the Clerk to the Disciplinary Committee to Mr Ng on 24 January 2018 that:

(1)  the Disciplinary Committee Proceedings Rules placed emphasis on written submissions;

(2)  the Complainant/Respondent’s Case must set out the Complainant/Respondent’s submissions on all relevant matters and annex all documentary evidence on which the Complainant/Respondent relied (as stated in Rule 17 of the Disciplinary Committee Proceedings Rules); and

(3)  the principal purpose of the oral hearing was to allow the Disciplinary Committee to question the parties and clarify matters.  While the procedures allowed for oral submissions to be made by the parties, all relevant matters should have been fully addressed in the written submissions and it was therefore anticipated that the oral submissions (to the extent that they were necessary at all) would be brief.

8.  It is clear that the process before the Disciplinary Committee is primarily intended to be a documentary process, and the purpose of the hearing before the Disciplinary Committee is not to “go over” any documents with Mr Ng, but to allow the Disciplinary Committee to put questions to, and clarify matters, with the parties.  We do not see such process to be inherently unfair or objectionable.

9.  In so far as Mr Ng seeks to challenge the procedural rule that strict rules of evidence do not apply to proceedings before the Disciplinary Committee, such challenge was not raised in his appeal to this Court.  In any event, the rule is not exceptional or objectionable, and applies in many other disciplinary processes of professional bodies in Hong Kong.  Mr Ng has also not been able to show how this rule had any impact on the findings of the Disciplinary Committee.  To the extent that Mr Ng’s current argument is tied to his previous complaint that the Disciplinary Committee only had “black and white” photocopied documents before it when considering the disciplinary charges against him, such complaint has already been dealt with in §§18 and 22 of the Judgment.

10.  At §12 of the Notice of Motion, Mr Ng also complains about the penalty awarded by the Disciplinary Committee, which he says “amounts to a severe cancellation of licence and high penalty in monetary terms”.  The complaint about the severity of the penalty has already been considered by this Court at §39 of the Judgment.  We do not consider the penalty awarded by the Disciplinary Committee to be plainly wrong, excessive or disproportionate in the present case.

11.  Other matters raised by Mr Ng in his Notice of Motion or submissions are either repetitions of the arguments previously advanced by him and rejected in the Judgment, or complaints of a general nature. They plainly cannot constitute proper grounds of appeal fit for decision by the Court of Final Appeal.

12.  In §2 of Mr Ng’s “Rebut Skeleton by the Respondent” dated 24 February 2022, he admits that “This case is not about a question of law but a matter of fact”.

13.  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.

14.  No question of great general or public importance involved in the proposed appeal is raised in the Notice of Motion.  We are unable to see any such question being 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.

15.  The application for leave to appeal is refused, and the Notice of Motion is dismissed with costs to the Complainant.  We have considered the Complainant’s Statement of Costs dated 18 February 2022 and Mr Ng’s objection dated 23 February 2022.  The Complainant seeks costs in the total amount of HK$62,660, which Mr Ng objects to as being “excessive for clerical work because this is an accountants’ case which is purely based on facts and auditing techniques”.  He also says that there is “no apparent input from the lawyers because it is all from the Complainant”, and the cases quoted “are hardly relevant and used by the Court”.  We consider the costs claimed by the Complainant to be reasonable and assess them summarily in the amount of HK$62,660.