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: Mr Sarojiddin Saliev Heard on: Tuesday, 31 May 2016 and Tuesday, 4 October 2016 Location: ACCA s Offices, The Adelphi, 1-11 John Adam Street, London, WC2N 6AU Committee: Mr Graham White (Chairman), Mr Patrick Bragg (Accountant) and Ms Wendy Yeadon (Lay) Legal Adviser: Mr Alastair McFarlane Persons present and capacity: Mr Mohammed Ismail ( ) (ACCA Case Presenters) Ms Cawley-Wilkinson ( ) (ACCA Case Presenters) Ms Pamella Ramphal (Hearings Officer) 1. ACCA was represented by Mr Ismail ( ) and Ms Cawley-Wilkinson ( ). Mr Saliev, who was not represented, attended via video link on both occasions with the use of a Russian interpreter. The Committee had before it a bundle of papers, numbered pages 1-103, a service bundle numbered pages 1-26, an additional service bundle numbered pages and an additional bundle numbered pages and a transcript of the first hearing.

2 SERVICE/ PROCEEDING IN ABSENCE 2. Having considered the service bundle, the Committee was satisfied that notice of the hearing was served on Mr Saliev in accordance with the Complaints and Disciplinary Regulations 2014 ( CDR ). ALLEGATIONS Allegation1(a) Pursuant to bye-law 8(a)(i) it is alleged that Mr Sirojiddin Saliev is guilty of misconduct by reason of possessing and/or using and/ or intending to use unauthorised materials to gain an unfair advantage during an F5 examination on 1 December 2014, contrary to Examination Regulation 5, 6, and/or 8. Allegation 1 (b) Mr Sirojiddin Saliev's conduct in respect of Allegation 1 (a) above is i. Dishonest ii. Contrary to the Fundamental Principle of Integrity OR Allegation 2 Pursuant to bye-law 8(a)(iii) it is alleged that Mr Sirojiddin Saliev is liable to disciplinary action by reason of possessing unauthorised materials during an F5 examination on 1 December 2014, contrary to Examination Regulation 6.

3 BACKGROUND 3. Mr Sirojiddin Saliev first registered as an ACCA student on 15 August He had undertaken one attempt at the F5 paper in June 2014, which was unsuccessful. 4. Mr Saliev attended the 1888/01 Tashkent Exam Centre on 1 December 2014 in order to sit the F5 examination again. The exam commenced at 2.00pm and was due to last for 3 hours, plus 15 minutes additional reading time at the start of the exam. 5. All candidates for ACCA examinations are made aware of the Examination Regulations. Prior to an examination, all candidates receive an attendance docket, which contains the ACCA guidelines and Regulations. Before an examination commences, the supervisor s announcements draw candidates attention to the regulations and guidelines outlined in the attendance docket. In particular, point 6 is a clear instruction to all candidates to remove all unauthorised materials from their desks. ACCA S CASE 6. ACCA contend that Mr Saliev had unauthorised materials with him in the exam. The unauthorised material consisted of handwritten notes on the inside and outside of a calculator lid. 7. An invigilator, Ms A stated in her SCRS1 form, completed on the day of the exam that she was alerted to the fact that this candidate may be cheating at approximately "3.00pm" as "the cover of the candidates calculator was found with cheating notes written with pencil." The student's behaviour was described as "normal." Ms A further stated that "the cover of a calculator was taken by a supervisor." ACCA s case is that the material was discovered one hour into the exam.

4 8. In the Examination Irregular Script Report, completed by Ms B, she states that the material is relevant to the syllabus and is relevant to this examination. She further states that there is "no way to tell" if the notes have been used when the student was attempting the examination, but that they were "relevant to Q5." 9. ACCA allege a breach of the bye-law as an alternative to Allegation 1. Mr SALIEV S CASE 10. In his written responses, Mr Saliev has consistently denied any wrongdoing. Mr Saliev completed an SCRS2 form on the day of the examination. He explained that "the founded cheating notes were made the long time ago when I was preparing for F2 exams in the classroom. I could not erase it, but tryed. Some of them were erased. This calculator was not used in F2 because I forgotted it at home that time...this chieting notes only helped me in preparation time...i have no other scientific calculator... I did not used any of them (chieting notes) (sic)". He maintained this had been dictated to him by the invigilator following a discussion at the end of the exam. 11. On 27 January 2015, Mr Saliev wrote to Exams Conduct, stating, "My name is Sirojiddin Saliev and I am The head of IFRS Department in JSCMB Ipoteka bank. It was a plastic cover of a scientific calculator without functions to store or display text. Such kind of scientific calculator is allowed according to the rules of ACCA. The invigilator took it from my desk after the 10 minutes from the start time of F5 exam. The invigilator did not consider it as a cheating and allow me to continue reading the exam.... At this time answer part of the exam was not even started. It was the 15 minutes reading time of the exam. During this time it is allowed only to read and write notes not to the answer sheet. As I forgot that there were any notes I even did not to try to look at those notes.the calculator was very old and I used it for 3 years with other staff of the bank where I work." In this same , Mr Saliev described the annotation on the calculator, stating "[t]here were

5 many reminders related to my job (The banking sector) and reminders relating to the usage of the calculator and some reminders relating to other classes have not relating to exams of the ACCA that used by other staff of JSCMB Ipoteka bank. That day I had no chance to change my calculator because I had not time to do it so." 12. In response to ACCA s request Mr Saliev provided a further response in an dated 12 March 2015 he repeated his denial of any wrongdoing, explaining that he forgot that there were any notes on the calculator; that he did not look at the calculator cover in any event and that the reminders on it related to his job, the usage of the calculator as well as some reminders relating to other classes that were not related to ACCA s exams. He repeated that he had no chance to change his calculator and stated: "One of the reasons why I didn't notice what was written on the cover of the calculator nor the fact that there were any notes on the cover of the calculator may also be that I am short-sighted (minus 7 eyesight) and I was in a rush to get to the exam centre." Mr Saliev sent a further outlining the incident on 7 August 2015 repeating that he was challenged by the invigilator during the 15 minute reading time at the start of the exam. He asserted that he told the invigilator that it was not his own calculator and that he did not know "what kind of symbols" were written on the cover.'' 13. Mr Saliev made further written denials to ACCA in his dated 30 August 2015, when he asserted that he did not know who had written on the calculator cover and speculated that it may have been his staff "who had prepared for the F2 exam before". In addition, he made further denials and criticisms of ACCAs case in a signed letter, dated 31 December 2015.

6 DECISION ON ALLEGATIONS AND REASONS 14. The Committee accepted the advice of the Legal Adviser. The Committee reminded itself that the burden of proving that Mr Saliev possessed unauthorised materials relevant to the syllabus being examined rested upon ACCA. However, pursuant to Examination Regulation 9, if this was established, the burden of proving that he did not intend to use them to gain an unfair advantage was on him. The standard of proof to be applied throughout was the ordinary civil standard of proof, namely the balance of probabilities. 15. The Committee heard that there had been no previous findings against Mr Saliev and accepted that it was relevant to put his good character into the balance in his favour. DECISION ON FACTS 16. The Committee carefully considered all the documentary evidence before it and Ms A s and Mr Saliev s oral evidence, as well as the submissions of Ms Cawley-Wilkinson on behalf of ACCA and Mr Saliev on his own behalf. 17. The Committee was satisfied that ACCA has proved that there were some pencil notes written on the cover of the calculator. Mr Saliev did not dispute this and the Committee accepted the evidence of Ms A on this. It was further satisfied that the notes (whatever they were) were "unauthorised materials as there is clear evidence that no notes are permitted on a candidate's desk during the exam. 18. The Committee next considered whether ACCA had proved, on the balance of probabilities, that these notes were "relevant to the syllabus being examined." The Committee considered it very unfortunate that since the first hearing, ACCA has lost the calculator the best evidence of what was contained on it and its relevance to the syllabus. ACCA relied upon the written evidence of Ms B, who had recorded in the Irregular Script Document, dated 8 January 2015, her opinion that the material was relevant to the syllabus and the particular examination. However, she had not particularised why she gave this opinion or provided any specific examples to support her assertion. There was no Witness Statement from Ms B, and she was not called to give evidence to the

7 Committee. There is no direct evidence before the Committee as to Ms B s position or qualifications, or the basis why she is qualified to give such an opinion. The document from Ms B does not establish that she was an examiner. The Committee gave ACCA an opportunity at the first hearing to ascertain more information on this, but none was forthcoming. ACCA invited the Committee to draw an inference from all the circumstances of the case, including the fact that the notes were on a calculator and in pencil. Mr Saliev did not accept that whatever was on the calculator was relevant to the syllabus for F5. The Committee considered the totality of the evidence to be insufficient for it to be able to draw the inference sought by ACCA and find as a fact, on the balance of probabilities, that the unauthorised material on the calculator was relevant to the syllabus. 19. The Committee specifically considered the credibility of Mr Saliev. While there was some variation in his account, for example, at one point he stated he did not write on the calculator and later said he may have done, the Committee found his explanation credible. He stated that the calculators in his office were shared and that other staff may have written on it/them. He grabbed this one while in a rush into the exam and did not notice any notes on the case, which he placed on the far side of his desk when he took the calculator out. The Committee accepted that Mr Saliev was a credible and honest witness. It accepted his assertion that he had little or no motivation to cheat in this exam. He took the calculator into the examination room to use as a calculator. 20. Further, and in any event, the Committee also had regard to what it can recall of the sight it had of the calculator cover. The pencil notes on it were small and unreadable. The Committee was not persuaded that ACCA has proved that what was on the calculator was a tool that could be used to cheat. 21. For all these reasons, the Committee was not persuaded that ACCA has proved that the unauthorised materials Mr Saliev had with him in the examination room were for the purpose of gaining an unfair advantage. Accordingly, the Committee was not persuaded that ACCA had discharged the burden of proof upon it, and found Allegation 1 (a) not proved. Therefore Allegation 1 (b) also falls. 22. Allegation 2 is proved by Mr Saliev s admission.

8 SANCTIONS AND REASONS 23. The Committee noted its powers on sanction were those set out in Regulation 12(3). It had regard to ACCA s Guidance for Disciplinary Sanctions and bore in mind that sanctions are not designed to be punitive and that any sanction must be proportionate. It accepted the advice of the Legal Adviser. 24. The Committee considered that the breach of the bye-law here was a careless error towards the bottom end of seriousness. Nonetheless, the Committee had specific regard to the public interest and the necessity to declare and uphold proper standards of conduct and behaviour. There was an obligation on Mr Saliev, who is an experienced examinee, to comply scrupulously with ACCA exam regulations. 25. The Committee has no doubt that this process has been a learning one for him and reminded itself that his failing was careless rather than reckless. It considered that he has insight into this conduct and it is unlikely to be repeated. It noted his good character. 26. The Committee was not persuaded that the breach was so minimal, bearing in mind the public interest, that it was proportionate to take No Further Action. However, it did consider that an Admonishment was sufficient to highlight to the profession and the public the significance of the proven conduct COSTS AND REASONS 27. ACCA claimed costs of 2,610, based on an assessment of work undertaken. The Committee considered that the central issue of ACCA s case has not been made out. However, the case was not improperly brought. In all the circumstances, including Mr Saliev s means, it decided that it was appropriate to order Mr Saliev to pay a contribution of 900 towards ACCA s costs in this case. Graham White Chairman 4 October 2016

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