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 Kasongo Chilufya and Miss Chitalu Nambeya Heard on: Friday, 8 January 2016 Location: The Chartered Institute of Arbitrators, 12 Bloomsbury Square, London, WC1A 2LP Committee: Mrs Judith Way (Chairman), Mr Constantinos Lemonides (Accountant) and Ms Helen Kitchen (Lay) Legal Adviser: Mr Richard Ferry-Swainson Persons present and capacity: Mr Alex Mills (Case Presenter on behalf of ACCA) Mr Richard Lorkin (Hearings Officer) PRELIMINARY APPLICATIONS/SERVICE OF PAPERS 1. The Disciplinary Committee ( the Committee ) convened to consider two Allegations against Mr Chilufya and two Allegations against Miss Nambeya arising from the same set of circumstances. Neither Mr Chilufya nor Miss Nambeya were in attendance. 2. The papers before the Committee were in one bundle numbered 1 to 52, together with four service bundles, numbered 1 to 29, for Mr Chilufya and three service bundles, numbered 1 to 27, for Miss Nambeya. 3. Mr Mills made an application to proceed in the absence of Mr Chilufya and Miss Nambeya. PROCEEDING IN ABSENCE

2 4. The Committee first considered whether the appropriate documents had been served in accordance with the Complaints and Disciplinary Regulations. The Committee took into account the submissions made by Mr Mills on behalf of ACCA and accepted the advice of the Legal Adviser. 5. This matter was last listed to take place on 2 November Included within the service bundle for Mr Chilufya was the Notice of hearing for 2 November 2015, dated 1 September 2015, thereby satisfying the 42 day notice requirement, and addressed to Mr Chilufya at his address as it appears in the ACCA register. Proof of postage was provided by way of Royal Mail Track and Trace. The same material was also sent by to an address provided by Mr Chilufya, with confirmation being received that the message had been delivered. 6. In the event the hearing did not go ahead on 2 November 2015 and a letter was sent to Mr Chilufya on 20 November 2015 informing him of this and that the new date for the hearing was 8 January 2016 at the Chartered Institute of Arbitrators venue. Proof of postage was provided by way of Royal Mail Track and Trace. The same material was also sent to Mr Chilufya s address, with confirmation being received that the message had been delivered. 7. Included within the service bundle for Miss Nambeya was the Notice of Hearing for the 2 November 2015 hearing, dated 1 September 2015, thereby satisfying the 42 day notice requirement, and addressed to Miss Nambeya at her address as it appears in the ACCA register. Proof of postage was provided by way of Royal Mail Track and Trace. The same material was also sent by to an address provided by Miss Nambeya and she responded by dated 22 October In her response she indicated that she would not be attending the hearing because of the long distance. A follow up was then sent to her asking if she wished to attend by way of video link, details of which were in the letter sent to her. Miss Nambeya did not respond to that With the hearing not going ahead on 2 November 2015, a further letter was sent to Miss Nambeya on 20 November 2015 informing her of this and that

3 the new date for the hearing was 8 January 2016 at the Chartered Institute of Arbitrators venue. Proof of postage was provided by way of Royal Mail Track and Trace. The same material was also sent to Miss Nambeya s address, with confirmation being received that the message had been delivered. 9. The Committee was satisfied that the Notices for the November 2015 hearing date had been served in accordance with the Regulations which, inter alia, require proof that the Notices were sent, not that they were received. It was clear that both students had been informed of the date and venue fixed for this adjourned hearing as soon as practicable. Having so determined the Committee then considered whether to proceed in the absence of each student. The Committee bore in mind that although it had a discretion to proceed in the students absence, it should exercise that discretion with the utmost care and caution, particularly because neither Mr Chilufya nor Miss Nambeya were represented. 10. The Committee considered each student separately but since there was essentially no difference in their respective positions, it dealt with them together. The Committee noted that in addition to sending the Notice of Hearing to Mr Chilufya, ACCA also sent s containing the Notice of Hearing and asking him whether he would be attending. No response has been received to any of the communications sent to him. ACCA also tried telephoning Mr Chilufya on a number of occasions, but the number called was always engaged, save on one occasion when it went to a message which stated party cannot answer your call right now. 11. Miss Nambeya was also sent a number of communications but only responded once in her dated 22 October She did not respond to the letter and sent on 20 November 2015 and when ACCA attempted to telephone her the call immediately went to an engaged tone. 12. In light of the almost complete failure of Mr Chilufya to engage with ACCA and the limited engagement by Miss Nambeya, the Committee considered that both students had voluntarily absented themselves from the hearing and thereby waived their right to be present. The Committee considered that ACCA had made all reasonable efforts to ensure that both students were

4 aware of today s hearing. In the circumstances the Committee decided that it should proceed in their absence. They faced serious allegations of dishonest behaviour in an exam. Neither had given any indication of an intention to attend or participate in the hearing. Although Miss Nambeya had indicated that she could not attend in November 2015 due to the distance involved, she did not respond to the suggestion that she might like to consider a video link, nor did she request an adjournment. Accordingly, the Committee considered that nothing would be gained by adjourning this matter. There was a clear public interest that the case be dealt with expeditiously, particularly as this was not the first time that it had been listed for a hearing, and the Committee concluded that in the interests of justice the matter should proceed today. ALLEGATIONS/BRIEF BACKGROUND 13. Mr Kasongo Chilufya and Miss Chitalu Nambeya, both students of ACCA, faced the following allegations: Allegation 1(a) Pursuant to bye-law 8(a)(i) it is alleged that Mr Kasongo Chilufya is guilty of misconduct by reason of causing and/or permitting Miss Chitalu Nambeya to sit an MA2 examination on his behalf on 25 June 2014 Allegation 1(b) It is alleged that Mr Kasongo Chilufya s conduct as set out in Allegation 1(a) above was: (i) (ii) Dishonest Contrary to the Fundamental Principle of Integrity Allegation 2(a)

5 Pursuant to bye-law 8(a)(i) it is alleged that Miss Chitalu Nambeya is guilty of misconduct by reason of causing and/or permitting Mr Kasongo Chilufya to sit an MA2 examination on her behalf on 25 June 2014 Allegation 2(b) It is alleged that Miss Chitalu Nambeya s conduct as set out in Allegation 2(a) above was: (i) (ii) Dishonest Contrary to the Fundamental Principle of Integrity 14. On 25 June 2014 Mr Kasongo Chilufya and Miss Chitalu Nambeya took computer based examination (CBE) MA2, Managing Costs and Finance, at the Zambia Centre for Accountancy Studies. 15. In presenting its case ACCA relied on statements provided by Miss 1, a Student Affairs Officer who was the exam coordinator and one of the invigilators, and Mr 2, another exam invigilator. 16. Miss 1 referred to the places that the two candidates sat the computer based exam and the method by which candidates collected their results from a print room within the exam hall once they had completed the exam. Mr Chilufya completed his exam and logged out of his computer. Before logging out Mr 2 was able to see that Mr Chilufya had passed, or at least the computer where he was sitting had recorded a pass. Mr Chilufya then left the exam hall but without collecting his result from the print room. Miss 1 went to the print room and could see that Mr Chilufya had not printed out his result. 17. Shortly after Mr Chilufya left the exam room Miss Nambeya left her desk went to the print room and collected her result, which was a pass of 74%. Shortly after that Mr Chilufya returned and admitted to Miss 1 that he had not printed a copy of his result because he was sure that he had failed, but he realised that nevertheless he would need a copy. This was provided to him based on his ACCA student number The result was an unsuccessful attempt with a score of 18%.

6 18. Given that result Mr Chilufya asked Miss 1 if he could retake the MA2 exam at the next sitting that day and she advised him that he could, subject to paying the required fee. 19. Miss 1 became suspicious of Mr Chilufya s result and asked Mr 2 to print out a report showing which students had logged on to which computers. On arrival at the exam hall each student is allocated a unique number referred to as an Access Token. Mr 1 was able to ascertain, by reference to where these two students sat to take their exam and their unique Access Tokens, that they had in fact logged on using each others details rather than their own. Consequently, Mr Chilufya ended up with Miss Nambeya s fail and Miss Nambeya with Mr Chilufya s pass. 20. When Mr Chilufya returned, Miss 1 told him that there was an issue with his result and that he could not resit the exam. Unprompted, Mr Chilufya then admitted that he had sat the exam for Miss Nambeya and that he had printed the result for Miss Nambeya to collect and that she had agreed to pay him. 21. Miss Nambeya was then contacted by telephone and asked to return to the exam hall, which she did. Miss 1 advised Miss Nambeya that it appeared that Mr Chilufya had taken the MA2 exam for her. Miss Nambeya made no comment at this stage. Both students were then asked to write an explanation about what had occurred. Both students admitted to having sat the exam for the other and that Miss Nambeya would pay Mr Chilufya. Their responses were as follows. 22. In his signed statement Mr Chilufya said, I Chilufya Kasongo student no , Admit on this day of cheating in the MA2 exam. I inputted the details of a fellow student on my computer and wrote the exam on her behalf while she wrote mine. The name of the student I did this for is Chitalu Nambeya. I was offered money if I passed on her behalf which I desperately needed to pay for my other exams. I regret ever doing this and all I can ask for is for you to exercise mercy upon me. I will never cheat in an exam again because I have learned a harsh lesson today. I apologise to you my

7 lecturers, my fellow students and the entire institution of ZCAs for painting a negative image. Please do exercise leniency. 23. In her signed statement Miss Nambeya said, I did not write my exams, they were written by a friend of mine Chilufya Kasonga. He needed money. he told me that he had problems to sought [sic] out and I was only able to assist him after him writing my exams. The time he was writing mine, I was also writing for him, he gave his details and I also got his details. it was agreed I will give him the money after the exams. 24. These admissions were later repeated to the ACCA investigations officer who wrote to both students asking for their comments and to confirm that their respective handwritten statements had been made by them. Mr Chilufya said, I admit the charges levied against me and confirm it is indeed me who wrote and signed the letter admitting the offence. He added, [I] can only ask for you to be lenient in your judgement. I have learned a very valuable lesson. Miss Nambeya said, I accept the offence sir and i regret doing it my sincere apologies. please sir exercise liniency [sic]. 25. In her dated 22 October 2015, Miss Nambeya added, I would like to apologize for my misconduct last year. I regret it. I was young and naive, but I have realised ACCA is the key to my future and I would love to continue. I accept my wrong doing and I deeply apologize for that. DECISION ON FACTS/ALLEGATIONS AND REASONS 26. The Committee considered carefully the submissions made by Mr Mills on behalf of ACCA and took into account the contents of the papers provided. The Committee accepted the advice of the Legal Adviser. Whilst accepting that each allegation relating to each student had to be considered separately, the Committee recognised that this was a case where the facts were so inextricably linked that it was appropriate to deal with both students together. 27. The Committee accepted the clear evidence of the two invigilators which was supported by the clear admissions made by both Mr Chilufya and Miss Nambeya as to their actions and motivation. The Committee was satisfied

8 that both students had come to a financial arrangement whereby Miss Nambeya would pay Mr Chilufya to sit the MA2 exam for her and at the same time she would pretend to be Mr Chilufya. Had they not been caught Miss Nambeya would have left that day with a pass in the MA2 paper to which she was not entitled and Mr Chilufya would have retaken the exam and would be likely to pass a second time. He was then to be paid for his part in the subterfuge, thereby benefiting financially from his inappropriate behaviour. The Committee was in no doubt that this behaviour by both students brought discredit upon themselves, the accountancy profession and ACCA and amounted to misconduct. This was behaviour that fellow members of the profession would certainly find deplorable. The Committee therefore found Allegation 1(a) in relation to Mr Chilufya and Allegation 2(a) in relation to Miss Nambeya proved. 28. The Committee was equally satisfied that such behaviour was by any standards dishonest and that both students would have known that. Impersonating each other so that one could gain a qualification they were not entitled to whilst the other made a financial gain from it was dishonest. Mr Chilufya clearly recognised this when he referred to the fact that he had cheated, as did Miss Nambeya who was only prepared to pay Mr Chilufya if he had passed the exam on her behalf. It followed that such behaviour was also contrary to the Fundamental Principal of Integrity in that it was neither straightforward nor honest. Accordingly the Committee found Allegations 1(b)(i) & (ii) and 2(b)(i) & (ii) proved. SANCTIONS AND REASONS 29. The Committee was referred to the Guidance for Disciplinary Sanctions which indicated that impersonation of another ACCA student in an exam was considered to be very serious. The Committee was cognisant of the fact that the purpose of sanctions was not to punish Mr Chilufya and Miss Nambeya, but to protect the public, maintain public confidence in the profession and maintain proper standards of conduct. Any sanction must be proportionate. The Committee accepted the advice of the Legal Adviser. 30. When deciding on the appropriate sanction, the Committee carefully considered the aggravating and mitigating features in this case. The

9 mitigation identified for each student was their early admissions to impersonation, together with their expressions of remorse, regret and some limited insight into their offending behaviour. In addition, neither student had any other matter in respect of which they had been disciplined by the Association, although the Committee considered this was of limited mitigation given that both had been students of ACCA for only six months at the time of sitting the MA2 exam. 31. The Committee considered the behaviour to have been aggravated by the fact that it was pre-meditated and that for Mr Chilufya it was motivated by financial gain and for Miss Nambeya it was motivated by a desire to obtain a qualification that she was not entitled to. Indeed, her 18% result demonstrated that she fell far short of the standard required to pass the exam. 32. The Committee carefully considered all the sanctions available from the least serious upwards and concluded that the only appropriate and proportionate sanction for both students was removal from the student register. The Committee considered them to be equally culpable since this pre-meditated plan could only have worked with both playing their respective roles. Cheating in accountancy exams in order to gain a qualification upon which the public will rely is very serious and fundamentally incompatible with being a student of ACCA. It is such a serious breach of bye-law 8 that no other sanction would adequately reflect the gravity of the offending behaviour. In addition, assisting someone else to cheat in order to obtain a qualification that they were neither entitled nor qualified to obtain and to do so for financial gain, is incompatible with being a student of ACCA. Honesty and integrity go to the heart of the profession. Because neither student had properly engaged with this hearing there was only limited evidence of insight and very little by way of mitigation, although there had been some expressions of remorse. The Committee concluded that there were no exceptional circumstances that would allow it to consider a lesser sanction than removal for each of these students. The Committee considered that a failure to remove a student from the register who had cheated during one of her accountancy exams, and another who had assisted her for financial gain, would seriously undermine public confidence in the profession and in ACCA as its regulator. In order to maintain public

10 confidence and uphold proper standards in the profession the Committee considered it was necessary to send out a clear message that this sort of behaviour would not be tolerated. COSTS AND REASONS 33. In respect of Mr Chilufya and Miss Nambeya, ACCA applied for costs in the sum of 3,045. The Committee considered that sum was too high in light of the fact that there was no evidence that the Investigations Officer had spent time on the case after the preparation of the Report. The Committee therefore reduced the sum by 280 to In all other respects the Committee considered the sum requested to be both reasonable and appropriate and, in the absence of any financial information from either Mr Chilufya or Miss Nambeya, decided to make an order in this reduced sum to be split equally between the two. Accordingly, each must pay the sum of 1, EFFECTIVE DATE OF ORDER 34. In light of its decision that Mr Chilufya and Miss Nambeya s misconduct was so serious that they should be removed from the student register, the Committee decided that it was in the interests of the public that the order should have immediate effect. Mrs Judith Way Chairman 8 January 2016