Professions — accountants — disciplinary proceedings — accountant admitted to complaint of professional misconduct in respect of tender declaration — whether finding of intentional dishonesty erroneous — standard of proof was civil standard of preponderance of probability under Re H — whether sanction of removal from register for three-year period manifestly excessive
X was the sole proprietor of a firm of certified public accountants (“X’s Firm”) and the sole owner and managing director of an accounting services company (the “C”). C submitted a tender to the Official Receiver (the “OR”) for appointment as a provisional liquidator. C was required to have at least two “recognised professionals”, one of whom had to be its director, and so falsely declared that T was a recognised professional and had been a director of C for one year. X subsequently admitted to inter alia a complaint of professional misconduct on the admitted facts. The disciplinary committee (the “Committee”) found proved “at a standard of proof commensurate with the allegation charged” that X had intentionally and dishonestly misled the OR into believing that T was a recognised professional and director of C in order to qualify as a tenderer. Further, after successfully obtaining the tender, X had not rectified C’s misrepresentation. Although the Committee accepted that X and T had agreed that T would join C as a director if the tender was successful (the “Oral Agreement”), it rejected X’s explanation that he had not intended or needed to deceive the OR as Y, a part-time employee of X’s Firm, could have satisfied the tender requirement as a “qualified professional”. The Committee removed X’s name from the register of certified public accountants for three years (the “Sanction”). X appealed against the Sanction on the grounds inter alia that the Committee erred in its finding of intentional dishonesty by X, arguing that there existed a heightened civil standard of proof which varied with the gravity of misconduct alleged or the seriousness of the consequences for the person complained of such that the standard in this case must necessarily equate to the criminal standard, relying on Dr Wu Hin Ting v Medical Council of Hong Kong  2 HKC 367 which was adopted in the Guidelines for the Chairman and the Committee on Administering the Disciplinary Committee Proceedings Rules (the “Guidelines”).
Held, dismissing the appeal, that:
- The notion of a “heightened civil standard” must be firmly rejected. The standard of proof for disciplinary proceedings in Hong Kong was the civil standard of a preponderance of probability under the Re H & Others (Minors) (Sexual Abuse: Standard of Proof) approach. The more serious the act or omission alleged, the more inherently improbable it was and the more compelling would be the evidence needed to prove it on a preponderance of probability.
- Here, X’s argument that the Committee had failed to apply the appropriate standard of proof commensurate with the circumstances of this case must fail. The Committee had applied the Guidelines, which replicated Dr Wu Hin Ting v Medical Council of Hong Kong, to the evidence before it.
- (Obiter) Consideration should be given to revising the Guidelines to reflect the current legal position on the standard of proof.
- The evidence in support of the Committee’s finding on intentional dishonesty was overwhelming. C needed two recognised professionals to qualify for the tender and X could not use Y as she was employed part-time by X’s Firm and not C. X therefore lied to enable C to obtain the OR’s appointment. Further, the Oral Agreement was premised on the tender being successful, but this required X to deliberately misrepresent to the OR that T had been a director of C for one year. It lay ill in X’s mouth to say that because of the Oral Agreement, he was merely negligent or reckless in so conducting himself.
- Finally, there was no basis to interfere with the Sanction. The complaint involved very serious misconduct sufficient to warrant the Sanction. The OR was in law responsible for the integrity of the liquidation process. To facilitate the OR’s assessment in the tender exercise, an applicant was under a duty to provide all necessary information and declare and confirm that it was true and correct. By the deliberate and dishonest misrepresentation concerning T, X had circumvented the tender requirement and misled the OR into appointing C, an otherwise unqualified accounting firm, as liquidator.