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)

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J U D G M E N T

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Hon Rogers VP:

1. This is an appeal from the judgment of Hartmann J given on 14 December 2002 whereby he dismissed an application by the appellant for judicial review. The application before the court related to two decisions. The major decision was that by the Hong Kong Society of Accountants made on or about 8 March 2001 which was communicated to the appellant by a letter from the Society dated 20 March 2001. The decision was to constitute a Disciplinary Committee under Part VI of the Professional Accountants Ordinance, Cap. 50 ("the Ordinance") to study the complaint made by the Registrar of the Society that section 34(1)(a)(iv) of the Ordinance applied to the applicant in that the Applicant had been negligent in the conduct of the accounts of Shanghai Land Company Limited ("the company") for the year ended 31 December 1998. The other decision was the decision of the Registrar to file a complaint with the Council of the Society on 26 October 2000. The judge dismissed the application and from that dismissal the appellant now appeals.

Background

2. In or about April 2000 the Society received an anonymous letter. It purported to be sent by an accountant. Enclosed with the letter were financial statements for the year ended 31 March 1998 of the company. As referred to by the judge below, it can be assumed for the purposes of this case that those accounts were taken from the appellant's office, almost certainly by an employee or now ex-employee. At about the same time two other sets of accounts were similarly sent to the Society under cover of anonymous letters.

3. Following receipt of the letter the Director of Professional Conduct of the Society wrote to the appellant's firm and raised a number of questions. These were answered in a letter signed by the appellant. There then followed correspondence between the parties primarily because the Director sought further clarification and the appellant did his best to supply the necessary information. It must be said that the appellant cooperated fully with the Director to enable the investigations to be conducted.

4. On 26 October 2000, the Registrar of the Society submitted a complaint to the Council of the Society under section 34(1)(a) of the Ordinance. The complaint was that the appellant in the auditing of the financial statements had been "negligent in the conduct of his profession" and/or had "failed or neglected to observe, maintain or otherwise apply a professional standard". The appellant was subsequently notified of this. Later, by letter of 20 March 2001, the appellant was given notice that the Council had referred the Registrar's complaint to a Disciplinary Panel and had constituted a Disciplinary Committee. It is in respect of that decision and the decision of the Registrar of 26 October 2000 to file a complaint against the appellant that the application for judicial review is made.

This appeal

5. On this appeal the appellant appeared in person, as he did in the court below. He argued his case clearly. He had obviously taken great trouble in the preparation of the case and in the preparation of his arguments. The primary points taken by the appellant arise from the fact that the information which has led to the bringing of the disciplinary charge against the appellant came initially as a result of an anonymous letter and the copies of the accounts which, at least for present purposes, must be taken to have been obtained illegally, in all probability stolen, from the appellant's office.

6. In approaching this case it must be stated that there is a natural distaste for those who seek to convey information by anonymous letters. Those who hide behind anonymity in making complaints against others might legitimately be accused of cowardice. The expression willing to wound but afraid to strike is also applicable to their conduct. The traditional place for anonymous accusations is the waste paper basket. In legal terms an anonymous accusation can carry no weight. It is for that reason, for example, that in the case of Barclays Bank plc v Anderson, Times Law Reports, 10 March 1987, Stephen Brown LJ said that the anonymous letter, which contained the information relevant to that case, had no evidential validity. In this case, however, the position is somewhat different. The letter itself was not sought to be relied upon. It was the copies of the accounts which came with that letter which contained the information which sparked the inquiries which ultimately led to the charges being laid.

7. One can but have sympathy with the appellant. Not only has this whole episode been started by somebody acting anonymously but that person is more than likely to have been, and possibly is still, employed in the appellant's office. It is not for this court to speculate as to why such a person would wish to act anonymously in the way he or she has done rather than draw any supposed defects in accounting procedure to the appellant's attention or, if a complaint to a third party is thought necessary, to say who he (or she) is. Nevertheless, such a person's actions do not on the face of the matter, cast the person involved in a favourable light.

8. The other aspect of the matter is that it would appear that the accounts which were forwarded to the Society had been stolen. This was a point which was accepted by the judge below. He was inclined to view the matter as de minimis. It is impossible in my view to form a concluded view as to whether a criminal offence has been committed, specifically one of theft, because the full facts are not known. The details of the acts actually committed are not known nor is the mental state and intention of the person who performed those acts. However, I would go further than the judge below in that it would seem that the accounts, as they lay in the accountants' office, might well have constituted confidential information. In view of section 5(1) of the Theft Ordinance, Cap. 210, I see no reason why confidential information should not be categorised as property which is capable of being stolen.

9. The difficulties which lie in the appellant's way in relation to the arguments which have been raised because the accounts had been stolen seem to me to be twofold. In the first place, the appellant has himself in the course of the correspondence with the Society, and in particular with the Director of Professional Conduct, confirmed the existence of the relevant accounts. In the second place, even if the writer of the anonymous letter had acted wrongfully no imputation of criminal conduct could be made against the Society or any of its officers. The use which the Society and its officers have made of the accounts was clearly made on the basis that the persons involved considered that they had a duty to take the actions which they have done.

10. In the course of his submissions Mr Chan sought to rely upon the decision of the Court of Final Appeal in FAMV No. 11/2001 given on 25 April 2001 wherein the appellant's application for leave to appeal in a previous case was refused. It would seem that the appellant has been under the misimpression that the Court of Final Appeal was of the view that the Society should be directed to ignore anonymous complaints and stolen documents. That, however, would be a misinterpretation of what the Court of Final Appeal said and I do not propose to take that matter any further.

11. I would agree with the judge below that even if evidence had been obtained illegally that would not preclude its use in the course of the formulation and prosecution of a disciplinary offence under the Ordinance. Although the position might be different in other jurisdictions, in Hong Kong there is no absolute bar to the use of illegally obtained evidence.

12. In pursuing his point that the evidence had been obtained illegally, the appellant sought to avoid the difficulty which arose from the fact that the Registrar in making the complaint could rely upon the appellant's own admissions in the correspondence, on the basis that such evidence had been obtained from him unfairly without informing him of what the purpose was. In my view whenever the Director of Professional Conduct makes inquiries it must be implicit that anything resulting from those inquiries might or could result in some complaint being made.

13. It is, of course, trite law that judicial review proceedings are concerned with the decision making process and the court cannot sit as an appellate tribunal from the actual decision taken. Obviously, if the decision taken was in the hallowed expression "Wednesbury unreasonable" a court may take the appropriate action. But in this case I do not consider that arises.

14. None of the other points raised by Mr Chan whether taken individually or collectively could in my view give rise to a conclusion that judicial review should be granted in this case. Therefore, whilst having sympathy in many respects, as I have indicated, for Mr Chan's position I am of the view that this appeal must be dismissed, with an order nisi of costs in favour of the 1st and 2nd respondents.

Hon Stock JA:

15. I agree and have nothing to add.

Hon Le Pichon JA:

16. I agree.