PETER P.F. CHAN v. HONG KONG SOCIETY OF ACCOUNTANTS

FAMV No. 11 of 2001

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 11 OF 2001 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACV NO. 469 OF 2000)

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DETERMINATION

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Mr Justice Bokhary PJ:

1. This application for leave to appeal to the Court of Final Appeal arises out of disciplinary proceedings under the Professional Accountants Ordinance, Cap. 50. Section 34(1)(a)(iv) of that Ordinance makes it a disciplinary matter for a professional accountant to be negligent in the conduct of his profession. This applicant faced a complaint of such negligence. On 11 August 2000 a Disciplinary Committee found the complaint proved, reprimanded the applicant and ordered him to pay a penalty of $250,000 to the respondent, the Hong Kong Society of Accountants.

2. He appealed to the Court of Appeal under s.41 of the Professional Accountants Ordinance which provides for an appeal from the Disciplinary Committee to the Court of Appeal. By its judgment handed down on 12 January 2001, the Court of Appeal (Rogers VP, Le Pichon JA and Burrell J) dismissed his appeal. He then sought the Court of Appeal's leave to appeal to the Court of Final Appeal. On 16 March 2001 the Court of Appeal refused such leave. In so doing, the Court of Appeal proceeded solely on the basis of its view that the Court of Final Appeal has no jurisdiction to hear any appeal from any decision of the Court of Appeal given under s.41 of the Professional Accountants Ordinance because subsection (2) of the section provides that: "The decision of the Court of Appeal, upon such an appeal, shall be final".

3. If that view be right, then even errors of law on points of great general or public importance would have to go uncorrected by the Court of Final Appeal in cases of this kind. The Court of Appeal cited no authorities in support of its view. Perhaps it believed that the decision of the Privy Council in De Morgan v. Director of Social Welfare [1998] AC 275 is such an authority. Refusing special leave to appeal against a decision of the Court of Appeal of New Zealand made under New Zealand legislation which made the Court of Appeal of New Zealand's decision "final and conclusive", the Privy Council said this at p.285 B-C:

" In the present cases the New Zealand legislature has, on the true construction of the statutes, provided that the decision of the Court of Appeal shall be final. Since the Court of Appeal is the ultimate Court of Appeal locally situate in New Zealand, the only possible intendment of such words is to exclude the only remaining right of appeal, i.e. appeal by special leave to the Privy Council. That being so, and there being no challenge to the powers of the New Zealand legislature to pass such legislation, the statutes effectively exclude any appeal to the Privy Council."

4. As can be seen, their Lordships expressly noted that no challenge had been made to the constitutionality of the legislation involved. How such a challenge would fare is of course unknown.

5. In the present application only the respondent is legally represented. The applicant appears in person. He has addressed us with ability and courtesy. But whether s.41(2) of the Professional Accountants Ordinance is to be read as ousting the Court of Final Appeal's jurisdiction and whether it would be constitutional if it is to be so read, are questions which require full legal argument. We leave those questions for resolution with the benefit of full legal argument in some future case. As this Committee did in A Solicitor v. Law Society of Hong Kong, FAMV No. 20 of 2000, 25 July 2000 (unreported), we move on to consider whether, assuming that an appeal to the Court of Final Appeal is possible, this is a case for granting leave to appeal to the Court of Final Appeal.

6. First, the applicant says that he has incurred a liability in costs of over $1 million and contends that an appeal to the Court of Final Appeal therefore lies as of right. This contention is untenable. It is plain that the monetary criteria under s.22(1)(a) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, does not encompass costs.

7. Next, the applicant raises a number of points of law. But the relevant law is well settled. And we see no reasonable prospects of the Court of Final Appeal applying the law in such a way as to reach a result different from the one reached by the Court of Appeal.

8. What is left is as follows. The applicant wants to ask the Court of Final Appeal: either to reverse the concurrent findings, made by the Disciplinary Committee and affirmed by the Court of Appeal, that he had been negligent in the conduct of his profession; or at least to reduce the penalty imposed by that committee and affirmed by that court. In both respects, he has set himself a mountain to climb. First, the Court of Appeal is generally slow to disturb findings of fact or awards of punishment made by the disciplinary tribunals of professional bodies enforcing professional discipline. Secondly, the Court of Final Appeal, in keeping with the practice of courts of final appellate jurisdiction generally, will not review concurrent findings of

fact save in exceptional circumstances, as explained in Sky Heart Ltd v. Lee Hysan Co. Ltd (1997-98) 1 HKCFAR 318 at pp 333-338.

9. Even if an appeal lies to the Court of Final Appeal in a case of this kind, the applicant has not shown that he has any reasonable prospect of success before the Court of Final Appeal. On any view of the jurisdiction issue, therefore, it would not be appropriate to grant him leave to appeal to the Court of Final Appeal.

10. In the result, this application is dismissed.

[The respondent asked for the costs of
this application, the applicant did
not oppose that, and the Appeal
Committee awarded the respondent
such costs.]