DISCIPLINARY COMMITTEE OF THE ASSOCIATION OF CHARTERED CERTIFIED ACCOUNTANTS

Transcription

1 DISCIPLINARY COMMITTEE OF THE ASSOCIATION OF CHARTERED CERTIFIED ACCOUNTANTS REASONS FOR DECISION In the matter of: Ms Luu Hai Yen Heard on: Thursday, 16 November 2017 Location: The Chartered Institute of Arbitrators, 12 Bloomsbury Square, London, WC1A 2LP Committee: Mr Graham White (Chairman), Mr Arif Kamal (Accountant) and Mr Jonathan Broad (Lay) Legal Adviser: Miss Judith Chrystie Persons present and capacity: Ms Deborah Baljit (ACCA Case Presenter) Mr Richard Lorkin (Hearings Officer) Observers: None Outcome: Removal from the Student Register; Costs Order - 1, SERVICE OF PAPERS 1. Ms Luu Hai Yen was neither present nor represented. 2. The Committee considered the following papers: Service Bundle numbered pages 1-16; Service Bundle 1 numbered pages 17-19; Service Bundle 2 numbered pages The Committee was satisfied there had been effective service of the notice of the hearing in accordance with the Complaints and Disciplinary Regulations 2014 (amended 2017) ( the Regulations ).

2 PROCEEDING IN ABSENCE 3. The Committee recognised that it should only proceed in Ms Luu Hai Yen s absence with the utmost care and caution but determined that it was fair to proceed in accordance with its discretionary power at Regulation 10(7) of the Regulations. PRELIMINARY APPLICATION 4. Ms Luu Hai Yen had repeated submitted first in the Case Management Form and again in subsequent correspondence that the hearing should proceed in private rather than in public. 5. ACCA opposed the application and submitted that there were no exceptional circumstances to displace the expectation under Regulation 11 of the Regulations that the hearing should be heard in public. ACCA argued that the application for the case to be considered in private lacked clarity and specifics, nor had the student set out details of any direct impact from a public hearing. 6. The Committee concluded that there were no exceptional circumstances to justify the hearing being held in private. It considered that the fact hearings were held in public were to demonstrate that justice was being fairly and properly administered. In this case, Ms Luu Hai Yen had argued that there may be a detrimental impact to ACCA s reputation in Vietnam if the hearing was to be held in public. The Committee considered that there was a clear interest in the public being aware that ACCA take allegations of the creation and submission of false documents seriously, in order to ensure that public confidence in the integrity and honesty of the profession was upheld. 7. The Committee considered that the reasons put forward by Ms Luu Hai Yen regarding her own and her family s reputation were not exceptional; they were reasons applying at any disciplinary hearing. 8. The Committee therefore refused the application and confirmed that the hearing should be held in public.

3 ALLEGATION(S)/BRIEF BACKGROUND 9. The Committee received the following papers: Main Bundle lettered A-K and numbered pages 1-82, Additionals Bundle numbered pages 83-84, Additionals Bundle 2 numbered pages and Tabled Additionals 1 numbered pages The Committee considered the following Allegation: (a) Miss Luu Hai Yen, an ACCA student, (i) on 20 August 2016, submitted false documents as set out in Schedule 2 to De Montfort University in order to apply for a place on the MSc Accounting and Finance course; and (ii) on 16 December 2016, submitted false documents as set out in Schedule 1 to UK Visas and Immigration in order to apply for a Tier 4 UK student visa. (b) Miss Luu Hai Yen s conduct in respect of 1(a) was: (i) dishonest; and (ii) contrary to the Fundamental Principle of Integrity, as applicable in 2016; (c) By reason of her conduct in respect of 1(a) and/or 1(b) above, Miss Luu Hai Yen is guilty of misconduct pursuant to bye-law 8(a)(i). Schedule 1 Academic Transcript from Oxford Brookes University Letter dated 27 August 2016 from Ian Andrew Schedule 2 Academic Transcript from Oxford Brookes University

4 Letter dated 25 June 2016 from Jane Towers-Clark 11. ACCA identified that Ms Luu Hai Yen had submitted three false documents: an academic transcript, a letter confirming the award of a degree and an academic reference. The documents had been submitted to De Montfort University on 20 August 2016 and to UK Visas and Immigration on 16 December ACCA did not call any oral evidence but relied on the following documentary evidence: a. Witness statement of Person A, International Admissions Administrator at De Montfort University dated 24 July 2017; b. Witness statement of Person B, Programme Portfolio Manager of BSc in Applied Accounting at Oxford Brookes University dated 20 April 2017; c. Witness statement of Person C, Senior Lecturer in Financial Management at Oxford Brookes University dated 26 April 2017; d. Witness statement of Person D, Programme Director at Oxford Brookes University dated 24 April 2017; e. Witness statement of Person E, the UK Visa and Immigration Regional Operational Manager dated 26 April ACCA submitted that Ms Luu Hai Yen knew what she was doing when she decided to create and submit false documents to gain entry to study because she did not meet the entitlement criteria. The Case Presenter argued that Ms Luu Hai Yen s actions were dishonest and, as such, lacked integrity. ACCA argued that the student s actual statement of mind was dishonest and that ordinary and honest people would consider that creating false documents and submitting them for gain was dishonest.

5 14. ACCA argued that such conduct fell short of the standards expected and was, therefore, misconduct. 15. ACCA identified that Ms Luu Hai Yen had made full and frank admissions. In correspondence with ACCA, Ms Luu Hai Yen stated: a. she personally submitted the false documents to both UK Visas & Immigration and De Montfort University; b. she submitted the false documents to UK Visas & Immigration in order to go to the UK to study; c. she submitted the false documents to De Montfort University; d. she knew the documents were false; e. she, very regret and scared when taking this action. After submitting, I felt depressed and believed that the false documents will be figured out. I was so scared and wanted to withdraw but I didn t know how to do and if the visa center could agree for me to withdraw it or not. Then, I gave up on procedures and wait for refusal decision but I didn t aware that this can resulted in serious consequences with parties involved. ; f. she, wanted to give her apology again to ACCA, Oxford Brookes University and De Montfort University for [her] dishonest behaviour [sic]. DECISION ON FACTS/ALLEGATION AND REASONS 16. Following Ms Luu Hai Yen s admissions, the Committee was satisfied that factual Allegations 1(a)(i) and (ii) were proved. The Chair announced this finding in accordance with Regulation 12(3)(c) of the Regulations owing to the clear and repeated admissions from Ms Luu Hai Yen. 17. In determining whether submitting the false documents was dishonest, the Committee accepted the advice of the Legal Adviser that the test it should apply was to:

6 a. ascertain the actual state of the Ms Luu Hai Yen s knowledge or belief as to the facts; and b. determine whether her conduct was honest or dishonest by the standards of ordinary people. 18. The Committee considered that it was clear from the correspondence that the student was aware that her conduct was wrong and was dishonest. Ms Luu Hai Yen apologised for her dishonest behaviour and it is clear from her communications that she feared that she would be found out. The Committee regarded the conduct as premeditated and a planned deception, which was repeated. It was executed in considerable detail both in respect of the academic transcript and the letters. 19. Having identified Ms Luu Hai Yen s state of mind, the Committee went on to consider whether her conduct was honest or dishonest by the standards of ordinary people. The Committee felt it was plain that the ordinary person would regard creating and submitting false documents to gain an entitlement to a visa or a university place as dishonest. Accordingly, the Committee found Allegation 1(b)(i) proved. 20. The Committee also found that the Fundamental Principle of Integrity was breached; the Principle required the student to be honest and Ms Luu Hai Yen had been dishonest. The Committee considered that there was a blatant lack of integrity; Ms Luu Hai Yen was not honest, straight-forward and truthful. She did not disassociate herself from her action, although her correspondence stated that she would have liked to have withdrawn the false documents after she had submitted them, she did not take any practical steps to withdraw the documents. The Committee found Allegation 1(b)(ii) was therefore proved. 21. The Committee considered whether the factual allegations that had been found proved amounted to misconduct. It regarded Ms Luu Hai Yen s dishonest conduct and lack of integrity as falling far short of the standards expected of students of the accountancy profession. The Committee considered that the conduct was deplorable and that it brought the profession into disrepute. The Committee judged that Ms Luu Hai Yen s

7 conduct amounted to misconduct and therefore found Allegation 1(c) proved. SANCTION AND REASON 22. The Committee had regard to the Guidance for Disciplinary Sanctions ( the Guidance ). 23. The Committee considered that there was some mitigation in the case: Ms Luu Hai Yen had no previous disciplinary or complaint history, had made early, frank and full admissions, had apologised for her behaviour, had expressed her remorse, had demonstrated limited insight and cooperated fully and engaged with ACCA throughout the process and generally in a timely manner. 24. However, the Committee considered that the misconduct and related dishonesty was a premeditated, planned, serious and sophisticated example of repeated dishonesty. A further aggravating feature was that the student had said that immediately after submitting the false documents, she had wanted to withdraw the papers but she was not sufficiently motivated to take any action to rectify her dishonesty Further, Ms Luu Hai Yen s insight was only limited and she had no real understanding that her conduct had wider implications such, as the wasted public funds in UK Visa and Immigration having to deal with the application and that a genuinely entitled student might have missed out on a place and that were wasted. 25. Further, although the Committee acknowledged the information about her personal circumstances, it considered that they could not amount to mitigation in the context of serious dishonesty. 26. The Committee determined that it would be insufficient to conclude this matter with no order, an admonishment or some form of reprimand serious or otherwise. The Committee considered that these sanctions would not reflect the fact that the conduct was seriously dishonest and had been premeditated and repeated. The Committee was concerned that Ms Luu Hai Yen s conduct compromised free competition for places at universities, defeated established immigration controls and impacted detrimentally on the reputation of the accountancy profession and ACCA.

8 27. The Committee took account of paragraph E2 of the Guidance which stated that the public is entitled to expect a high degree of probity from a professional who has undertaken to abide by a code of ethics. Ms Luu Hai Yen deliberately planned a deception for gain. The Committee found no exceptional mitigation and considered that the only appropriate order to conclude in the public interest was to remove Ms Luu Hai Yen s name from the student register. This reflected the seriousness and significance of her misconduct and dishonesty. 28. The Committee, therefore, ordered that Ms Luu Hai Yen s name should be removed from the student register. 29. The Committee considered whether the order should be immediately effective. ACCA submitted that the removal order should have immediate effect. However, after careful consideration and on balance, the Committee determined that the test set out in Regulation 20(1)(b) of the Regulations, namely, that an order should have immediate effect in the interests of the public, was not satisfied; the public interest did not demand that the order was immediate. In addition, the Committee made no order in relation to the period of time that should elapse before an application for readmission should be considered. COSTS AND REASONS 30. ACCA has claimed costs in the sum of 6, Ms Luu Hai Yen had not raised any comments on the cost schedule following its service on her. The Committee considered that the costs claimed were fairly and reasonably incurred. 31. The Committee recognised that under Regulation 15(1) of the Regulations, it could direct that Ms Luu Hai Yen pay such sum by way of costs to ACCA as it considered appropriate taking into account any effect the student s actions in relation to the conduct of the case had had upon the costs of dealing with the case, whether beneficial or otherwise. 32. Ms Luu Hai Yen had submitted a Statement of Financial Position. This contained very limited information but suggested that she was unable to

9 meet the ACCA s claimed costs. However, it was clear from the papers that she had managed to discharge a debt to De Montfort University in the sum of In all these circumstances, the Committee determined that a deduction should be made to the amount claimed and ordered that Ms Luu Hai Yen should pay costs in the sum of 1,500. Mr Graham White Chairman 16 November 2017