LAW FEI SHING v. THE HONG KONG INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS

HCAL 132/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 132 OF 2014

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D E C I S I O N

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Introduction

1. This is an ex parte application for leave to apply for judicial review.  The applicant is a certified public accountant who has been the subject of a complaint to the respondent, the Hong Kong Institute of Certified Public Accountants (the Institute). 

Regulation of the Accountancy Profession

2. The Institute was established and incorporated by the Professional Accountants Ordinance, Cap 50, (the Ordinance), and is responsible for the registration and control of the accountancy profession in Hong Kong.  The governing body of the Institute is the Council which is established under section 10 of the Ordinance.  There is also a Registrar appointed by the Council under section 21 who is secretary to the Institute and to the Council.  There is a management committee of the Institute which includes the position of General Counsel. 

3. The management and control of the Institute is vested in the Council which has the specific power, amongst other things, to do anything necessary for the better carrying out of the objects of the Institute[1] and the general power to do anything else not covered by the Ordinance.[2]  The Council regulates the accountancy profession by a system of registration.  It has been given powers to make any statement of professional ethics or specify standards in relation to the practice of accountancy which are required to be observed and maintained by its members.[3] It has in place procedures to investigate, determine and punish any professional misconduct by its members.  As is apparent, it has wide powers over its members and can give directions to them in connection with the discharge of its functions or duties may conduct or defend any legal proceedings by or against the Institute or its officers or otherwise concerning the affairs of the Institute.[4] 

4. The accountancy profession performs a myriad of duties and functions which will invariably involve complying with certain legal and administrative requirements that the public demands should be satisfied or fulfilled to an appropriate professional standard.  Any departure from that standard can have deleterious consequences to the person or entities concerned and can bring the profession into disrepute. 

5. The regulation of a profession is an important and onerous responsibility, especially one that has legal and professional obligations and consequences.  Where a regulatory body has been specifically enacted to regulate and control a profession, it reflects both the legislative and public concern that the profession maintains certain standards of practice, and that it provides the service to the community as expected. 

6. The objects of the Institute under section 7 seek, amongst other things, to regulate the practice of the accountancy profession, to preserve and maintain the profession’s reputation, integrity and status, and to discourage dishonourable conduct and practices by certified public accountants, and for this purpose to hold inquiries into the conduct of certified public accountants, firms and corporate practices. 

7. Disciplinary proceedings are covered by Part V of the Ordinance.  It provides for the establishment of Disciplinary Panels which are entrusted to deal with complaints against a certified public accountant or corporate service.

8. Section 34 provides that a complaint against a certified public accountant under subsection (1)(a) or a corporate practice under subsection (1)(b) which falls into any of the categories of conduct listed must be made to the Registrar who must submit it to the Council which may in its discretion refer it to the Disciplinary Panels.  Where the Council decides not to refer the complaint to the Disciplinary Panels, an aggrieved complainant can ask the Council to reconsider its decision under subsection (1AAA). 

9. Section 34(1A) provides that where the Registrar has reason to believe that subsection (1)(a) or (1)(b) applies; he must submit the facts to the Council which may refer the complaint to the Disciplinary Panels. 

10. The Institute has promulgated rules in relation to disciplining its members which are known as the Disciplinary Committee Proceedings Rules of September 2006. 

11. The making of a complaint is specifically addressed by the following three Rules. 

“3. A complaint under section 34(1)(a) or (b) of the Ordinance, section 34(1)(a) as applied by section 34(1AA) and 41A of the Ordinance, or by‑law 34(1) of the By‑laws, shall be in writing and signed by the Complainant, shall set out the grounds of the complaint, and shall be made to the Registrar who shall submit the complaint to the Council.

4. Where the Registrar has reason to believe that section 34(1)(a) or (b) of the Ordinance, or section 34(1)(a) as applied by section 34(1AA) and 41A of the Ordinance, applies to a certified public accountant or a corporate practice, or that by‑law 34(1) of the By‑laws applies to a registered student, he shall submit the facts to the Council which may, in its discretion, refer the complaint to the Disciplinary Panels.

5. The Council, before deciding whether or not to refer a complaint to the Disciplinary Panels:

(a) may require the Complainant or the Registrar to supply such further information and documents in his possession custody or power relating to the complaint as it thinks fit;

(b)  shall invite the Respondent to submit to the Council in writing any explanation of his conduct or of any other matter alleged in the complaint which he may have to offer.”

12. The Rules provide for the referral by the Council of a complaint to the Disciplinary Panels which is submitted to a Disciplinary Committee to decide whether a complaint has been proved in light of the facts before it and, if so, to determine the sanction to be imposed. There are also detailed procedures under the Rules for the giving of notice of the allegations of the complaint to the respondent and for the conduct of the proceedings.[5]

13. Accordingly, under section 34, there are two routes by which a complaint of professional misconduct against a member of the Institute can be referred to the Disciplinary Panels by the Council in order to bring the matter before a Disciplinary Committee.  The first is where a complaint is made under any of the categories listed in section 34(1)(a) or (b) to the Registrar.  The second is where the Registrar has reason to believe that section 34(1)(a) or (b) applies and such belief may be based on whatever information or material that has come to his attention either by referral to or inquiry by him.  The essential requirement under section 34(1A) is that the Registrar has reason to believe that a member of the Institute has engaged in misconduct and thereby invoking the disciplinary procedures.

14. It should also be noted that under Part VA of the Ordinance, Investigation Panels are established to investigate conduct of a certified public accountant or firm or corporate practice by direction under section 42C(2) and where the Investigation Panel is of the opinion that there is a prima facie case, the Council is accordingly informed and may in its discretion refer the matter to the Disciplinary Panels and constitute a Disciplinary Committee pursuant to section 33(3).

Complaint against the applicant

15. On 5 September 2012, a client of the applicant filed a complaint of professional misconduct against him with the Institute.

16. Even though there would have been communications between the parties from about that date, the contents of the application for leave for judicial review focus on events from March to September 2014.  No information or explanation is given as to what transpired before this period. I have not been provided with the details of the nature of the complaint both in its original form or later as submitted by the Registrar. 

Complaint by the applicant

17. It is stated in the application that prior to 18 March 2014 the applicant through his solicitors, Lau, Chan & Co, sought and obtained an extension of time to respond to the invitation of the Council to make a written representation under Rule 5 regarding the complaint that had been referred to it by the Registrar.  As I understand what has happened, the complaint by then had been further particularised by the Registrar as a result of inquiry by the Institute into the material supplied.  A Complaint Letter was then submitted to the applicant in order for him to make any representations pursuant to Rule 5 if he so wished. 

18. He now complains that the Registrar was obliged to submit the original complaint to the Council and that neither the Registrar nor the Council had power to reformulate or expand the original complaint. 

Correspondence between the applicant and the Institute

19. In a letter dated 18 March 2014, addressed to the Institute from the applicant’s solicitors, a number of issues were purportedly raised with the Institute/Council. It would appear that an extension of time had been granted to the applicant in order for his legal advisers to consider the relevant papers so he could make representations pursuant to Rule 5 to the Council in relation to the Complaint Letter.  Instead, the applicant’s solicitors’ letter contained queries and submissions in accordance with counsel’s advice raising a number of objections. 

20. First, it was complained that the Registrar lacked the jurisdiction to refer the Complaint Letter pursuant to section 34(1A) which it was said was an unjustified expansion of the complaint from the original complainant which it was obliged to process. Secondly, it was complained that the complainant by discontinuing a winding up petition against the applicant was estopped from pursuing his complaint with the Institute.  Thirdly, it was complained that the Institute by proceeding with the complaint was usurping the function of the court which was continuing with the winding up petition against other parties.  Fourthly, it was complained that making Rule 5 representations would infringe the applicant’s privilege against self‑incrimination given that the complainant had made a criminal complaint against the applicant.  Fifthly, it was complained that the complaint lodged by the complainant was mala fides.

21. In a reply letter dated 26 March 2014, from General Counsel of the Institute, it was pointed out that the extension of one month was granted to 19 March 2014 in order for the applicant to file Rule 5 representations to the Council in relation to the Complaint Letter sent to the applicant on 28 January 2014.  

22. He noted that no attempt had been made to respond to the Complaint Letter and instead a number of technical grounds were raised to justify why in the opinion of the applicant’s solicitors the matter should be stayed.  He in any event addressed the grounds raised to stay the matter giving full and considered reasons.  He explained that the original complaint by the complainant initiated an inquiry into the matter by the Institute and the complaint letter was a product of the Institute’s own findings on the matter after reviewing all the material including representations from the applicant.  He referred to the judgment of Hartmann J (as he then was) in Dr Peter Po Fun Chan v The Hong Kong Society of Accountants, HCAL 176/2000, 29 June 2000, unreported, where he said:

“The Society has a statutory obligation to ensure that professional standards are adhered by its members. A failure to do so could result in the profession falling into disrepute. In order to discharge its responsibility to ensure the preservation of standards, the Society – acting through the Registrar – is empowered to consider any matter coming to its attention other than by means of a formal, identifiable complaint. That power comes from section 34(1A) of the Ordinance which enables the Registrar to refer any matter that he ‘has reason to believe’ reveals professional misconduct or negligence on the part of a member. If he was not so entitled, there would be no need to define his powers in section 34(1A); section 34(1)(a) alone would suffice.

The fact that in the present case, in terms of section 34(1A), the Registrar has used his powers to peruse materials coming to his attention, has then expressed his concerns to the Applicant and has given the Applicant a full opportunity to reply cannot, in my opinion, begin to approach anything smacking of procedural impropriety or a breach of contemporary standards of natural justice.”

23. It should be noted that Hartmann J was dealing with the Institute under its previous name as the Hong Kong Society of Accountants but the relevant provisions and rules have essentially remained the same.  Hartmann J went on to deal with the argument that the Registrar only has an unfettered discretion to refer matters himself to the Council when such matters come to his notice other than by way of complaint, and that if they come to his attention by way of a complaint, he is obliged to follow the procedures under Rule 3 and to ensure the complaint as identified proceed to the Disciplinary Committee. He rejected this narrow interpretation and said:

“But if a complaint is not prepared to be identified or is not prepared to proceed further with the matter then, in my judgment, in terms of section 34(1A), if the Registrar believes that the complaint has substance, he may take the matter over and become the prosecutor of the cause. The Registrar must then — his identity being known — state the details of his complaint. I say that because by then it has become ‘his’ complaint. Section 34(1A) is expressed in broad language. Such language is necessary to encompass the wide range of circumstances in which matters may lawfully be brought to the Registrar’s attention. If that was not the case, it would undermine the clear intent of the legislation.”

24. As the General Counsel rightly explained, the Registrar had the power to inquire into a matter and refer a complaint based upon the inquiry carried out.  There was no substance to the contention by the applicant that the Registrar did not have the power to make a complaint on his own initiative under section 34(1A) when a complaint had been received under section 34(1) which he was obliged to submit to the Council.  The Registrar had inquired into the original complaint which he was entitled to do under section 34(1A) and having done so, where he had reason to believe that subsection (1)(a) or (b) applied, he was required to submit the facts to the Council which would determine whether or not to refer the complaint to the Disciplinary Panels. 

25. The applicant complained that the Registrar expanded the original complaint and failed to submit the complaint in its original form.  This is a non‑sequitor. If this was an expansion of the original complaint then the original complaint is contain in it.  In addition, if it is being suggested that the Registrar is limited to submitting to the Council the original complaint then that is simply contrary to section 34(1A).  It would appear that the Registrar in examining the subject matter of the complaint and the materials supplied in support of it or through further inquiry arising from the original complaint, identified other matters that caused him to invoke the power under section 34(1A).  This in my view the Registrar was clearly entitled to do. 

26. It may be the original complaint still formed part of the complaint submitted to the Council by the Registrar, but even if it did not, the Registrar would not be precluded from presenting the facts to the Council under subsection 34(1A).  It would be unnecessary to separately submit the complaint in its original form under section 34(1) if it was included with other matters under section 34(1A).  It should be noted that if a complainant is aggrieved by the way the Council has handled his complaint, he may request the Council to refer the complaint to the Disciplinary Panels, unless it is of the opinion that there is no prima facie case or the complaint is frivolous or vexatious.[6]

27. The General Counsel also explained that the Institute had a statutory duty to determine whether a member had breached the relevant code of conduct or professional standard, and if so to punish that member accordingly. 

28. As to the complainant’s discontinuance of his action against the applicant in the civil courts, General Counsel explained that there was no reason why this should prevent an investigation or hearing of any alleged misconduct by the applicant.  There is nothing remarkable by what he stated and it was obviously correct.  On the limited material filed with the court, the general notion that an inquiry into professional misconduct would usurp the function of a court dealing with a winding up petition which had been discontinued by the complainant was on the material before me rightly rejected. 

29. It appears that in the papers filed in the winding up petition it was mentioned that the complainant had lodged a complaint with the police against the applicant, and it was on this basis and nothing more, that the applicant submitted that by making Rule 5 representations his privilege against self incrimination would be violated.  The General Counsel rightly drew the applicant’s solicitors’ attention to R v The Institute of Chartered Accountants in England and Wales ex parte Nawaz [1997] PNLR 433 which was applied in A Solicitor v The Law Society of Hong Kong, CACV 60/2012, 21 December 2012, unreported.  In that case, insofar as is relevant, the solicitor declined to answer an inquiry into an allegation of professional misconduct on the ground of the privilege against self incrimination.  The Tribunal held that the privilege was not available in that situation and even if it were relevant, the solicitor waived the privilege by virtue of his membership with the Law Society and the binding provisions of the Hong Kong Solicitors’ Guide to Professional Conduct.  The Court of Appeal upheld the Tribunal’s finding and Kwan JA (with whom the other judges agreed) quoted with approval the following passage of Leggatt LJ in Nawaz:[7]

“When a person enters a profession he accepts its duties and liabilities as well as its rights and powers. Similarly, he may acquire or surrender privileges and immunities. Nevertheless, the principle that privilege is not to be regarded as having been abrogated, except by express words or necessary implication, applies also to waiver. In my judgment, acceptance of a duty to provide information demanded of an accountant constitutes a waiver by the member concerned of any privilege from disclosure. It is plainly in the public interest, as well as the interests of the profession, that the Institute should be enabled to obtain all such information in the possession of its members as is relevant to complaints of their professional misconduct.”

30. After citing this passage, Kwan JA explained that:[8]

“This reasoning applied squarely to refute any argument that in the course of an investigation by the Law Society of a Complaint of professional misconduct against a solicitor, that solicitor may invoke the privilege against self‑incrimination to refuse to provide information to the enquiries of the Law Society.”

31. In conclusion, the General Counsel noted that the purpose of the extension was to allow the applicant to make representations to the Complaint Letter and that if he chose not to do so then the Council would consider the matter without them.  Nevertheless, the applicant was given a further 7 days from the date of the letter to provide such Rule 5 representations if he so wished.

32. The General Counsel’s response resulted in yet another letter from the applicant’s solicitors dated 1 April 2014 submitting comments and arguments on counsel’s advice complaining that the General Counsel by his reply was usurping Council’s function in the matter and then went on to reiterate the points that they had previously raised.  It also appears that the applicant’s solicitors took the same point as they did with the General Counsel’s involvement previously with respect to the Deputy Director of the Institute when he responded to previous correspondence.

33. In a follow up letter dated 15 April 2014, the applicant’s solicitors suggested that the parties meet to narrow down the issues and reach a consensus as to the future progress of the matter.

Referral to the Disciplinary Panels

34. In the meantime, the Council considered the Complaint Letter from the Registrar and, it would seem together with all other materials in relation to the complaint, including the correspondence from the applicant’s solicitors.  On 25 April 2014, the applicant was given formal notice that the Council had resolved to refer the matter to the Disciplinary Panels and to constitute a Disciplinary Committee.  In the notice, he was given a brief explanation of the procedures and requirements of the disciplinary proceedings and his attention was drawn to relevant information and material.

35. The applicant’s solicitors in a letter dated 20 May 2014 to the Council continued with their complaint about the involvement of the General Counsel where they alleged that he had usurped the functions of the Council and that he was wrong in his response to the issues they had previously raised.  

No usurping of Council’s function by General Counsel

36. I must say that the argument as advanced by the applicant’s solicitors as contained in their correspondence concerning the involvement of the General Counsel was in my view completely misconceived, and the authority that was quoted or referred to was either irrelevant or misunderstood.  For instance, it was complained that the General Counsel had taken over the function and role of the Council by his engagement in the previous exchange of letters and the case of Medical Council of Hong Kong v Helen Chan (2010) 13 HKCFAR 248 was cited as an example of a legal adviser participating excessively in the deliberations and decision making process of a tribunal, thereby undermining its competency, independency and impartiality.  This case concerned the involvement of the legal adviser in the Medical Council’s deliberations in the conduct of a disciplinary inquiry, and even then the Court of Final Appeal held that there was no express or implied statutory prohibition on the presence of the legal adviser at the deliberations of the Council, and nor was his presence or drafting of its deliberations unconstitutional as it did not impact on the competence, independence or impartiality of the Council.

37. In any event, I see nothing wrong at all with the General Counsel being involved in this matter.  In fact, it would seem absurd if the General Counsel could not be involved, as his very purpose and function is to deal with legal issues for the Institute.  In this instance, he quite properly dealt with the legal representatives of the applicant in relation to legal issues and arguments that were being raised preliminary to Council’s consideration of any referral to the Disciplinary Panels.  The representations from the applicant’s solicitors were put before and considered by the Council when it made its decision to refer the matter to the Disciplinary Panels.  That was made abundantly clear in the formal notification dated 25 April 2014.

No reasons warranted

38. The applicant’s solicitors also complained that they had not been given reasons for the Council’s decision to refer the complaint to the Disciplinary Panels.  The Council’s referral decision is a preliminary step in the process of bringing a matter before the Disciplinary Panels in order to constitute a Disciplinary Committee, if decided to do so, to investigate and determine a complaint.  A request or demand for reasons at this stage of the process in respect of a decision to refer the matter was in the circumstances not warranted.  There are many decisions that are made in the course of dealing with or processing a matter that by their very nature are procedural which do not require reasons.

No denial of natural justice

39. There was no denial of natural justice as complained of by the applicant’s solicitors with respect to the Council’s decision to refer the matter to the Disciplinary Panels.  The applicant was given every opportunity to make representations but failed to do so.  The applicant has only himself to blame for not taking up the opportunity to make Rule 5 representations as he was repeatedly invited to do.  However, the Council did consider the representations made by the applicant’s solicitors as they were put before the Council when it made its decision to refer the matter to the Disciplinary Panels.

40. It is quite apparent from the nature and tone of the letters from the applicant’s solicitors that they were repeatedly raising objections and not adhering to the requirements and procedures in place in an effort to force a settlement of the matter.  The fact remained it concerned an allegation of professional misconduct on the part of the applicant which the Institute was obliged to deal with and if considered appropriate to investigate and determine as part of its statutory obligations in regulating the conduct of its professional members and ensuring that the professional standards it has set are performed and maintained. This was done in accordance with the statutory and administrative requirements and procedures that are in place.

41. It is equally apparent that the Institute has all along sought to carry out its statutory functions and obligations and there is not the slightest hint that it has done so contrary to established principles and procedures.

Correspondence from the Institute’s solicitors

42. The Institute through its solicitors, Reed Smith Richards Butler, in a letter dated 15 July 2014, further dealt with the issues and complaints that had been repeatedly raised by the applicant’s solicitors.  They confirmed that the letters of 18 March and 1 April 2014 and the representations therein were considered by the Council when dealing with the complaint against the applicant and that the Council did not delegate its decision to refer the complaint to the General Counsel of the Institute.  They also took the time to explain the relevant statutory and administrative requirements and procedures.  It was pointed out that under section 34(1A) where the Registrar had reason to believe that a disciplinary offence had been committed, he was required to refer the matter to the Council for consideration which was done in this case and that this was not a matter of discretion for the Registrar.  They also pointed out that under the Ordinance the referral by the Council of a complaint to the Disciplinary Panels was at a preliminary stage of the process, where the Council acts in an administrative capacity and does not make any final and binding decision as to the merits of the complaint upon a hearing of the parties.  I have already dealt with this issue and I agree with these remarks.  Under Rule 5, the Council is obliged to invite the person the subject of the complaint to submit to it in writing any explanation of his conduct or of any other matter alleged in the complaint which he may have to offer.  The Council is also required to do this before deciding whether or not to refer a complaint to the Disciplinary Panels. They confirmed that this procedure had been followed by the Council.

43. The Institute’s solicitors also confirmed that in response to the request in the applicant’s solicitors’ letter of 20 May 2014, the Council had again considered the applicant’s arguments and reaffirmed its original decision to reject the applicant’s procedural objections and to refer the matter to the Disciplinary Panels.

44. The Institute’s solicitors very responsibly urged the applicant’s solicitors to focus their efforts on addressing the substantive complaint against the applicant instead of raising repeatedly the same arguments under threat of judicial review.  It is a pity that they did not heed this advice.  Instead, there followed further correspondence rearguing the previous issues they had raised with some elaboration, but the principal point being that the Registrar did not have jurisdiction to submit a complaint on his own initiative to the Council and the Council had no jurisdiction to entertain it.  This simply ignored the wording of section 34(1A) which provides in explicit terms that the Registrar can submit a set of facts to the Council where he has reason to believe that subsection (1)(a) or (b) applies in relation to a certified public accountant or corporate service respectively.

45. The Institute’s solicitors in a reply dated 16 September 2014 properly noted that they had explained in detail in the letter of 15 July 2014 why the applicant’s procedural objections were without merit.  They also noted that the Council’s decision to refer the matter to the Disciplinary Panels was made on 25 April 2014 and notification dated 11 September 2014 was given to the applicant’s solicitors that a Disciplinary Committee had been constituted to deal with the complaint against the applicant where it was required that the complainant submit his case by 3 October 2014 and that the applicant submit his case by 24 October 2014.

46. The Institute’s solicitors also drew the applicant’s solicitors’ attention to the fact that as Council’s referral decision was made on 25 April 2014, and under the rules of the High Court an application for leave to apply for judicial review was required to be made as soon as practicable after the grounds first arose and in any event within three months. The applicant filed his notice of application for leave on 9 October 2014.  

47. The Institute’s solicitors further reminded the applicant’s solicitors that leave to commence judicial review proceedings would not be granted, even in the case of a reasonably arguable case, until the applicant had exhausted his alternative remedies such as in the present case a right of appeal upon the conclusion of any disciplinary proceedings.[9]  I should add that the courts of Hong Kong have stated time and again, that it is highly undesirable for criminal proceedings which would include disciplinary proceedings, to be fragmented or disrupted by a collateral challenge. 

Application out of time

48. Curiously, the decision that is sought to be judicially reviewed is described as the decision of the Council “at about a short while before 11 September 2014 to refer the complaint made by Lee Kwong On of Chong Luen Hing Garments Limited against Mr Law Fei Shing to the Disciplinary Panels”.  It was not a short while before 11 September 2014.  The referral decision was made on 25 April 2014. 

49. In an effort to explain the delay in filing this application, it is stated that the Council had never represented to the applicant that his written representation under Rule 5 would no longer be accepted.  There is no substance to this argument.  The applicant’s solicitors were repeatedly invited and given time to make Rule 5 representations on behalf of the applicant but failed to do so.  

50. In a further effort to bring the filing of the application within the 3 months period, reliance is placed on the proposition that the Council only referred the complaint to the Disciplinary Panels not long before 11 September 2014.  This is an artificial attempt by the applicant to equate the referral decision with the date when the matter was passed on to the Disciplinary Panels.  It is the referral decision that the applicant is seeking to review and that was made on 25 April 2014.  It was a decision that was known to the applicant and his legal advisers as of that date. 

51. The applicant also seeks to justify the delay by relying on the time taken for corresponding and negotiating for a settlement which may have been his objective but this was being done in the face of repeated rejections of his solicitors’ arguments and frequent requests for the applicant to attend to procedural requirements.  

52. There is no justification to grant an extension of time in the circumstances of this case and I refuse to do so.  There is also a strong suggestion that matters were being repeatedly raised and pursued by the applicant in order to delay the processes to deal with the complaint in question.

Grounds for judicial review

53. It is difficult to discern what decision is the subject of the application for leave that has been filed.  It appears to be a cluster of factual matters and legal points with little or no reference to an actual decision.  The grounds themselves are generally framed in imprecise and vague language and in some instances do not correspond with the events or the matters complained about in the body of the application. 

54. There are six grounds for review which are as follows:

“The decision is unlawful

(1) The decision is ultra vires in that the Registrar could not in law reformulated the complaint made by the complainant, Lee Kwong On, for referral to the Council, and thus such a referral is void and has no effect, which in turn has rendered the decision unlawful.

(2) The decision is also ultra vires in that the Registrar could not in law taking over the complaint (that was made by the complainant Lee Kwong On) received by him, and then processed it under Section 34(1A) of the PAO, which is a proceeding for the referral of facts. By so doing the Registrar has also usurped the function of the Council in formulating the facts into a complaint for referring to the Disciplinary Panels.

(3) The decision was not made by the Council in that it had allowed the general counsel of the Respondent to usurp its functions and duties in the decision process, and thus the decision is unlawful and void.

The decision was biased

(4) The decision was biased in that the Council has allowed the general counsel of the Respondent to continue usurping its functions and duties in the decision making process when earlier on the general counsel had already made a decision adverse to the interests of the Applicant.

The decision was reached under procedural unfairness

(5) In purporting to change the complaint by Lee Kwong On under Section 34(1) into a proceeding under Section 34(1A) of PAO, the Council had ignored the Applicant’s right to be heard on the change, and so this was a breach of the rule of natural justice rendering the decision unsustainable.

(6)  When challenged and queried with the justifications for the change of proceeding from one under Section 34(1) to that under Section 34(1A), and its later asserted decision to refer the Registrar’s complaints to the Disciplinary Panels, the Council failed to give adequate reasons and so was procedurally unfair.”

55. I will address the grounds of review under their respective headings. 

56. The grounds that the decision was unlawful complain that the Registrar could not in law reformulate the complaint made by the complainant.  The Registrar made the complaint pursuant to section 34(1A) by submitting to the Council the facts.  He was entitled to do so.  The applicant seeks to make a point between the Registrar submitting the facts to the Council and making a complaint to the Council.  The distinction is completely artificial and insignificant.  Whilst the section refers to the Registrar submitting “the facts” to the Council, it is clearly in relation to a complaint.  The applicant also seeks to make the point that the Council’s referral decision was usurped by the involvement of the General Counsel in the decision process.  There is simply no support for this proposition. The involvement of the General Counsel concerned him addressing the matters raised by the applicant’s solicitors and was clearly done in furtherance of the functions and duties of the Institute.  Despite the unsubstantiated allegation by the applicant, there is no suggestion whatsoever that the General Counsel made the referral decision, or that it was made other than by the Council. 

57. The ground that the decision was biased seeks to complain again about the involvement of the General Counsel.  There is no substance to this ground.  The correspondence from the applicant’s solicitors were tabled before and considered by the Council when it made its decision to refer the matter to the Disciplinary Panels.  There is no cause for complaint by the applicant.  The referral decision did not involve the making of a final and binding decision as to the merits of the complaint and was just a preliminary step in the process to bring the matter before the disciplinary body.  The procedure provides for representations from the party the subject of the complaint under a Rule 5 which would be included in the material in relation to the complaint.  As has already been emphasised the referral stage does not involve the Council deciding the merits of a complaint.

58. The grounds that the decision involved procedural unfairness are difficult to understand.  It is complained that the applicant was denied the right to be heard on the original complaint and as a consequence there has been a breach of natural justice.  The answer to this is that the applicant is being given the right to be heard in relation to a complaint to which he has been given full particulars and notice.  The complaint as initiated by the Registrar under section 34(1A) was within the power of the Registrar to do so and it was not required in the circumstances for the Council to give reasons for making the referral to the Disciplinary Panels. 

Conclusion

59. This application is bereft of any merit and I have no hesitation in refusing leave because it is both out of time and without merit.  This application also suffers with a lack of relevant information together with vague and imprecise grounds of review. 

[1] Sections 18(1)(a) and 7.

[2] Section 17(1).

[3] Under section 2 “professional standards” means (a) any statement of professional ethics; or (b) standards of accounting, auditing and assurance practices, issued under section 18A.

[4] Section 18(1)(j).

[5] See also sections 35, 36 and 37.

[6] See section 34(1AAA).

[7] At paragraph 32.

[8] At paragraph 33.

[9] Section 41