DISCIPLINARY COMMITTEE OF THE ASSOCIATION OF CHARTERED CERTIFIED ACCOUNTANTS
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1 DISCIPLINARY COMMITTEE OF THE ASSOCIATION OF CHARTERED CERTIFIED ACCOUNTANTS REASONS FOR DECISION In the matter of: DAVID LEUBEN ENACHU Heard on: 18 August 2015 Location: ACCA offices, 29 Lincoln s Inn Fields, London WC2A 3EE Committee: Mrs Lubna Shuja (Chairman) Ms Ruby Sukkersudha (Accountant) Mrs Lorna Jacobs (Lay) Legal Adviser: Mrs Fiona Barnett Observers: Mrs Wendy Harris - ACCA Appointments Board Mr Gary Leong ACCA Disciplinary Assessor Persons present and capacity: Ms Kayleigh Long ACCA Case Presenter Miss Kathryn Reece ACCA Committee Officer PRELIMINARY MATTER OBSERVERS 1. Two observers had attended today, both of whom intended to observe the proceedings in open session and to observe the Committee during its private deliberations. 2. The Legal Adviser reminded the Committee that Mr Enachu was not in attendance and could not provide a view on whether he was in agreement with that course. The Committee should therefore make a decision as to whether it was appropriate for the observers to be present during the Committee s deliberations. The Legal Adviser referred the Committee to the test set out in the case of Porter v Magill [2002] 2 AC 357 HL.
2 3. Ms Long informed the Committee that this was a matter for the Committee however she did not object to the observers observing the Committee in private. 4. The Committee considered the test set out in Porter v Magill and asked itself whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased, if the observers were permitted to be present in the private deliberations. 5. The Committee was satisfied that a fair minded and fully informed observer would not conclude that there was a real possibility of bias. Mr Leong is an independent Disciplinary Assessor and it is part of his training to observe all parts of an ACCA hearing. Mrs Harris is a member of ACCA s Appointments Board. It is set out in ACCA s Performance and Appraisal policy, which is a matter of public record, that members of the Appointments Board are required to observe the performance of Committee members both in public and in private session. SERVICE OF PAPERS 6. Mr Enachu did not attend and was not represented today. 7. The Committee had before it a Service Bundle with pages numbering 1 to 11 and a further Service Bundle with pages numbering This showed that a Notice of Hearing dated 24 April 2015 had been sent on that date by international recorded delivery to Mr Enachu s registered address. The Committee was therefore satisfied that proper notice had been given and that service had been effected in accordance with Regulations 9(1)(a) and 21(1)(a) of the Complaints and Disciplinary Regulations 2015 ( CDR ). PROCEEDING IN ABSENCE 8. Ms Long submitted that the Committee should proceed today. She submitted that as Mr Enachu had not engaged with the proceedings at any time, there was no merit in adjourning the proceedings as ACCA had already taken all reasonable steps to contact him without success; an
3 adjournment would therefore serve no useful purpose and she further submitted that there was a public interest in proceeding today. 9. In determining whether to proceed, the Committee accepted the advice of the Legal Adviser. It bore in mind that whilst it has a discretion to commence and conduct proceedings in the absence of the member, it should exercise that discretion with the utmost care and caution. The Committee had regard to the factors set out by Lord Bingham in the case of R v Jones 2002 UKHL The Track and Trace documents showed that delivery of the Notice of Hearing had been attempted by Royal Mail on 6 May An ACCA Committee Officer had also made several attempts to contact Mr Enachu by telephone and at the contact number and address shown in the register to enquire whether he intended to attend the hearing. There had been no response to the s, and the Committee Officer had been unable to connect to the telephone number on all occasions. In the circumstances, the Committee could not be satisfied that Mr Enachu was aware of the hearing date and it could not therefore conclude that he had voluntarily absented himself. 11. However, the Committee concluded that ACCA had made all reasonable efforts to contact Mr Enachu to advise him of the hearing, albeit without success. It was aware that Mr Enachu had not been contactable during the investigations concerning his conduct, and had not responded at any time during ACCA s investigation. It also bore in mind that it was Mr Enachu s responsibility to maintain an up to date and effective registered address. There was no evidence before the Committee to suggest that the position was likely to change. It therefore found that adjourning the case, for any length of time, would serve no useful purpose and was unlikely to result in communication or attendance from Mr Enachu. 12. The Committee also bore in mind the public interest in proceeding expeditiously to conclude regulatory matters, so that findings can be made, and action taken, if required. It noted that the allegations before it related to a period of time dating back to 2011/2012. It was mindful that there may be some prejudice to Mr Enachu if the hearing proceeded in his absence, as he
4 would have no opportunity to put his case, however, it found that the public interest in proceeding outweighed any prejudice to Mr Enachu. 13. The Committee decided that it was fair and reasonable in these circumstances to proceed in Mr Enachu s absence. ALLEGATION Allegation 1 (a) Pursuant to Bye-law 8(a)(i), David Leuban Enachu is guilty of misconduct by reason of: i. taking money that was returned by staff for banking for personal and non-business related purposes to the approximate sum of UShs. 15,159,100 (Ugandan Shillings); ii. taking money from the Staff Savings contribution scheme for personal and non-business related purposes to the approximate sum of UShs. 4,768,200; iii. cashing a cheque for personal and non-business related purposes to the approximate sum of UShs. 6,560,400; iv. receiving approximately UShs. 1,948,200 and a period of study leave for ACCA examinations that were not undertaken; v. submitting fraudulent documents to his employer purporting to have achieved ACCA qualifications. (b) David Leuban Enachu's conduct in relation to allegation 1(a) was: (i) Dishonest; (ii) Contrary to the Fundamental Principal of Integrity (as applicable in 2011 and 2012). BRIEF BACKGROUND 14. The Committee had before it papers numbering pages 1 91, which confirmed that Mr Enachu was a student member of ACCA.
5 15. On 6 August 2009, Mr Enachu commenced employment as Finance and Administration Manager with Organisation A. It is alleged that Mr Enachu absconded from duty on 16 October 2012 and switched off all known telephone contacts. Organisation A instructed a firm of public accountants to verify Mr Enachu s professional qualifications and to assess whether he had caused any financial loss to the organisation. 16. The public accountants carried out an investigative audit for the period 1 April 2011 to 16 October 2012 and prepared a report dated 27 February The report concluded that Mr Enachu: Took money that was returned by staff for banking (equivalent to approximately 3537). Took money from the Staff Savings Contribution Scheme (equivalent to approximately 1110). Cashed a cheque for an amount equivalent to approximately 1530 without authorisation. 17. The public accountants also located 2 ACCA examination certificates in Mr Enachu s name for ACCA qualifications purportedly obtained in June and December Enquiries made with ACCA s office in Kampala, Uganda, revealed that the certificates were fraudulent and although Mr Enachu was an ACCA registered student, he had not taken any ACCA examinations. 18. Organisation A confirmed to ACCA that it had paid for Mr Enachu to obtain ACCA accreditation and given him study leave. It alleged that Mr Enachu had produced a receipt and documentation of successful completion of the courses. 19. ACCA s investigating officer attempted to communicate with Mr Enachu during the investigation to seek his response. No response has been received from him at any time. DECISION ON ALLEGATION AND REASONS 20. The Committee accepted the advice of the Legal Adviser. In reaching its decisions, it reminded itself that the burden of proof rests with ACCA, and
6 that the standard of proof is the civil standard, which is the balance of probabilities. The Committee drew no adverse inference from Mr Enachu s absence. Allegation 1 found proved in its entirety Allegation 1(a)(i) facts found proved 21. The Committee considered the report, appendices, and conclusions of the public accountants. The public accountants found that during Mr Enachu s employment at Organisation A, cash which was unspent by different heads of department would be returned to Mr Enachu for re-banking. They analysed Mr Enachu s gross receipts and banking during the period under review and calculated that UShs 15,159, 100 had not been accounted for. They concluded that this money had been fraudulently taken by Mr Enachu from Organisation A for his own benefit. In the absence of any denial, explanation or challenge from Mr Enachu, the Committee accepted the public accountants conclusions and therefore found the facts in allegation 1(a)(i) proved. Allegation 1(a)(ii) facts found proved 22. The public accountants explained in their report that Organisation A ran an internal staff savings scheme. Mr Enachu was responsible for cash collection and disbursement of cash withdrawals. They found that there was a discrepancy un-accounted for of UShs 4,768,200 and concluded that Mr Enachu had diverted this money for his personal benefit. In the absence of any explanation from Mr Enachu or other evidence to contradict this conclusion, the Committee accepted it and found the facts in this allegation proved. Allegation 1(a)(iii) facts found proved 23. The Committee considered the report of the public accountants. This concluded that on 16 October 2012, Mr Enachu, whilst employed by Organisation A, had cashed a cheque in his name for UShs 6,560,400 from
7 Organisation A s bank account for his own benefit. The report also stated that he absconded on that day. 24. The Committee also considered the letter (undated) from the CEO of Organisation A to Blake Lapthorn solicitors, in which the CEO stated that Mr Enachu had, stolen the cash at hand from the office in addition to a cheque which he stole. The Committee noted that neither a copy of the cheque nor the cheque stub had been provided, however, it also noted that Mr Enachu disappeared on the day that the cheque was cashed. In the absence of any denial or explanation from Mr Enachu, or other evidence to contradict this evidence, the Committee accepted the evidence from the CEO and the conclusion in the report and found the facts of this allegation proved. Allegation 1(a)(iv) facts found proved 25. The Committee received correspondence from the CEO of Organisation A. She confirmed in an dated 28 May 2014 to Blake Lapthorn Solicitors, and in an undated letter to Blake Lapthorn, that Organisation A had paid for Mr Enachu to obtain ACCA accreditation, that he had taken the approved study leave and that he had produced receipts for most of the expenditure. These receipts had been provided to the Committee. She confirmed in a further dated 11 July 2014 that Mr Enachu had been permitted to leave work early on 2 (or possibly 3 days) each week and was given a week of additional leave prior to examination dates. 26. An ACCA Operational Delivery Administrator had carried out an investigation into Mr Enachu and had confirmed in his report (undated) that Mr Enachu had not sat or passed any ACCA papers. This was confirmed in the report of the public accountants and in a letter dated 7 January 2013 from the Head of ACCA in Uganda. Having taken account of this evidence, and borne in mind that there was no evidence from Mr Enachu to contradict it, the Committee found the facts of this allegation proved.
8 Allegation 1(a)(v) facts found proved 27. The CEO of Organisation A confirmed that Mr Enachu had provided falsified and forged documents to the Organisation. The Committee was satisfied that the documents submitted were fraudulent. In reaching this decision, it took account of the result of the investigation carried out by ACCA s Operational Delivery Administrator. He concluded that the documents were deemed fraudulent for a number of reasons which included: Old ACCA logo had been used The exam papers to which the certificates related had not been passed Old style certificates The student s address would not be present on the certificate The certificate would have had a unique ID number 28. Having found that Mr Enachu submitted fraudulent ACCA certificates to his employer, in the absence of any explanation from Mr Enachu, it could reasonably be inferred that he was purporting to have achieved the qualifications shown in the fraudulent certificates. The Committee therefore found the facts in allegation 1 (a)(v) proved. MISCONDUCT 29. The Committee went on to decide whether the facts found proved in allegations 1(a)(i) (v) amounted to misconduct. 30. It was satisfied that they did. Mr Enachu was found to have misappropriated funds belonging to Organisation A over a period of time in a variety of ways for his own use. He had been placed in a position of trust and had abused that trust. He had also taken money and time for study leave, did not sit ACCA exams, but produced fraudulent documentation to demonstrate that he had achieved ACCA qualifications. The Committee was in no doubt that these actions, either independently or taken together, brought discredit to Mr Enachu, to ACCA and to the profession as a whole. His conduct had fallen seriously short of the standards expected of an ACCA student.
9 31. The Committee therefore concluded that Mr Enachu was guilty of misconduct. Allegation 1(b)(i) 32. The Committee went on to decide if Mr Enachu s conduct in relation to allegation 1(a) was dishonest. The Committee considered the facts found proved in allegations 1(a)(i) (v) in turn. It accepted the advice of the Legal Adviser that it should adopt a 2 stage (objective/subjective) Ghosh type test, but that it should apply the wording as set out by Mostyn J in the case of Kirschner v GDC 2015 EWHC 1377 (Admin). It also accepted the advice of the Legal Adviser that student members of ACCA were subject to the same standards of professional conduct expected from qualified accountants. Dishonesty in relation to allegation 1(a)(i) found proved 33. The Committee had found that Mr Enachu had taken unspent cash belonging to his employer for himself, and not banked it as required. Mr Enachu had stolen the funds which belonged to organisation A. It was satisfied that this is conduct which would be regarded as dishonest by the standards of ordinary and honest members of the accountancy profession. 34. The Committee also found that on a balance of probabilities, Mr Enachu realised that what he was doing was dishonest by those standards. In reaching this conclusion, the Committee considered the findings of the investigative audit; it had been discovered that Mr Enachu did not issue formal acknowledgement receipts for the unused cash, whereas he had issued such receipts for other transactions. This demonstrated that Mr Enachu had concealed what he had done in relation to the cash. His actions must therefore have been conscious and pre-determined. He had known what he was doing, and in the absence of any explanation from him, the Committee could reasonably infer from these facts that he realised that what he was doing was dishonest by the standards of ordinary and honest accountants including students. The Committee therefore found that he had acted dishonestly.
10 Dishonesty in relation to allegation 1(a)(ii) found proved 35. The Committee had found that Mr Enachu had taken money from the staff savings scheme for his own use. It was satisfied that stealing funds from colleagues for his own use, when he had been entrusted to safeguard those funds was conduct which would be viewed as dishonest by ordinary and honest members of the accountancy profession. 36. The Committee noted the findings of the audit investigation carried out by the public accountants. They found that Mr Enachu had ensured individual staff passbook records would accurately reflect the staff deposits and withdrawals. However, they reported that the office record cards he kept,.would read whatever he had wished to record which also formed part of the few transactions he would record with the Accounts Assistant. 37. The Committee found that Mr Enachu s actions had been conscious, planned and covered-up. By writing up the staff passbooks accurately, he was likely to avoid suspicion from colleagues, yet by making only a few entries in office records, he was able to divert funds from the unrecorded office transactions to himself, as shown in the audit investigation. There had been no explanation or evidence from Mr Enachu to challenge the findings of the investigation audit. The Committee therefore found that a dishonest state of mind was a reasonable and obvious inference that could be drawn from these facts. Mr Enachu must have realised that what he was doing was dishonest by the standards of ordinary honest accountants. The Committee found that Mr Enachu s actions in allegation 1(a)(ii) were dishonest. Dishonesty in relation to allegation 1(a)(iii) - found proved 38. In determining whether Mr Enachu acted dishonestly in relation to allegation 1(a)(iii), the Committee carefully considered the findings in the public accountants report. They discovered that: Mr Enachu absconded on the day he made the cash withdrawal There was no authorised cash requisition form to demonstrate that he was authorised to make the withdrawal.
11 The cheque cashed by Mr Enachu had been shown within the official cheque register and cheque stub records as a CANCELLED CHEQUE. The 2 individuals from Organisation A who were the official cheque signatories denied signing the cheque, even though their purported signatures were on the cheque. Scientific evidence showed the signatures were unlikely to be theirs. 39. The Committee was satisfied that in cashing a cheque issued by his employer without authority from his employer and marking the cheque stub as cancelled, Mr Enachu had acted in a way which would be regarded as dishonest by the standards of ordinary honest members of the accountancy profession. 40. Further, from the facts, a strong inference could be drawn that Mr Enachu realised that what he had done was dishonest. He had made the transaction without authority from Organisation A, absconded that same day and ensured that records showed the cheque as cancelled, which, the Committee determined, could only be construed as an endeavour to cover up what he had done and avoid suspicion. It concluded that Mr Enachu must have known what he was doing at all stages and realised that it would be regarded as dishonest by the standards of ordinary honest members of the accountancy profession. It therefore found that in relation to allegation 1(a)(iii), Mr Enachu had acted dishonestly. Dishonesty in relation to allegation 1(a)(iv) found proved 41. The Committee had found that Mr Enachu had received money and study leave from Organisation A for ACCA examinations that were not undertaken. It considered that ordinary honest members of the profession would consider it dishonest to take time and money from an employer for a specific purpose and to not fulfil that purpose. 42. In the absence of any explanation from Mr Enachu on this issue, the Committee found it more likely than not that he realised that this was dishonest. It was clear from the evidence provided by the CEO that Mr Enachu had provided receipts to his employers for ACCA exams and
12 engaged in discussions with them about exam fees, so he clearly knew that they had given him money for study/exam purposes and must have been aware that they expected him to sit the exams. He did not do so and had not informed his employer. It was therefore reasonable to infer that he had knowingly acted dishonestly, and the Committee found this proved in relation to allegation 1(a)(iv). Dishonesty in relation to allegation 1(a)(v) found proved 43. The Committee was satisfied that in providing his employer with fraudulent ACCA certificates to create the impression that he had passed those exams, Mr Enachu had acted dishonestly by the standards of ordinary honest members of the accountancy profession. 44. The Committee found that the provision of fraudulent certificates was a conscious and deliberate act by Mr Enachu. The Committee had already found that he had taken money from his employers for ACCA accreditation and had taken agreed study leave but not taken the exams. It was therefore self-evident that he would have known he had not taken the exams referred to in the certificates and could not have passed them nor received a genuine certificate. In the absence of any challenge from Mr Enachu, the only reasonable inference the Committee could draw from these facts was that Mr Enachu knew what he was doing was dishonest by the standards of ordinary honest members of his profession. The Committee therefore found that he acted dishonestly in relation to allegation 1(a)(v). Allegation 1(b)(ii) Fundamental Principle of Integrity 45. The Committee found that Mr Enachu had acted dishonestly in relation to allegations 1(a)(i) to (v). He had clearly not acted in a straightforward and honest manner with his employers, colleagues and with ACCA. 46. The Committee found that he had shown no integrity and had behaved in a way which was contrary to the Fundamental Principle of Integrity as applicable in 2011 and 2012.
13 SANCTION AND REASONS 47. The Committee accepted the advice of the Legal Adviser who referred it to ACCA s current Guidance on Disciplinary Sanctions ( the Guidance ). It bore in mind that it must act proportionately at this stage, balancing the members interests against the public interest. 48. The Committee found the following aggravating factors in this case: Mr Enachu had abused his position of trust. He had acted dishonestly repeatedly. His actions had been premeditated and persisted over a period of at least 18 months. The appropriated funds had been for his own use. He had taken large sums of money from Organisation A and from his colleagues. He had caused loss to Organisation A. The public accountants concluded that he,.ran the organisation to financial loss, and The public accountants concluded that, he was both the architect and the executor of the fraudulent scheme. He had caused loss to his colleagues. He had absconded and not co-operated with any investigation, had shown no insight into his wrongdoings nor expressed any remorse. He had deliberately concealed his misconduct. His misappropriation of funds had the potential to impact on members of the public, as organisation A was a charity. He had caused reputational damage to Organisation A. There had been no remediation For the above reasons, and taking into account the factors relevant to seriousness in Guidance, the Committee was satisfied that the misconduct was very serious. 49. The Committee was unable to identify any mitigating factors.
14 50. The Committee first considered whether to conclude this case without taking further action. It concluded that to do so would not protect the public and the wider public interest. 51. The Committee next considered whether an Admonishment would be an appropriate and proportionate sanction in this case and found that it would not. None of the factors set out in the Guidance in support of this sanction were met. The findings were too serious to be dealt with by way of an Admonishment. 52. The Committee next considered whether a Reprimand would be an appropriate and proportionate sanction. It concluded that it would not, as the conduct was not of a minor nature and Mr Enachu was still a risk to the public. 53. The Committee then considered whether a Severe Reprimand would be an appropriate and proportionate sanction, but determined that it would not for the following reasons. There was no mitigation or evidence before it to satisfy it that there would be no repetition of the misconduct. The Committee found that in the absence of any response from Mr Enachu, he still represented a risk to the public. There was no evidence to suggest that Mr Enachu understood and appreciated the seriousness of his actions, and None of the factors set out in the Guidance which would militate in favour of a Severe Reprimand were applicable. 54. The Committee then considered Removal from the student register. The majority of the factors set out in its Guidance which supported this sanction were applicable here, as set out above in paragraph 48, (aggravating factors). The Committee was satisfied, in view of the aggravating factors and in the absence of any mitigating factors, that Mr Enachu s misconduct was fundamentally incompatible with continued student membership. Taking into account the seriousness of the case and balancing the interests of Mr Enachu, the interests of ACCA and the public interest, the Committee
15 concluded that this would be the proportionate sanction in the circumstances of this case. Given the Committee s findings, it was satisfied that Removal from the student register was the minimum necessary to protect the public interest. 55. The Committee ordered that Mr Enachu be removed from the student register. COSTS AND REASONS 56. Ms Long, on behalf of ACCA applied for costs in the sum of 3, The Committee accepted the advice of the Legal Adviser. 58. The Committee had no evidence of financial means from Mr Enachu; it had also received no representations from him on the question of costs. In the absence of any representations or information from Mr Enachu, the Committee found that the sum requested from ACCA was an appropriate sum in all the circumstances. 59. The Committee ordered that Mr Enachu pay 3565 to ACCA in costs. EFFECTIVE DATE OF ORDER 60. In view of the seriousness of the misconduct and the fact that the Committee had found that Mr Enachu still represented a risk to the public, the Committee determined that it was in the interests of the public for this Order to take effect immediately in accordance with CDR 19(1)(b) PUBLICITY 61. Ms Long invited the Committee to make a publicity order referring to Mr Enachu by name. 62. The Committee accepted the advice of the Legal Adviser.
16 63. ACCA s regulations require ACCA to publish the Committee s findings and orders by way of a news release naming the relevant person, as soon as practicable. The Committee has discretion as to which publications the news release should be sent, and discretion in exceptional circumstances to direct that the relevant person is not named. 64. In the absence of any representations from Mr Enachu on the issue of publicity, the Committee found that there were no exceptional circumstances which would justify not naming him in any publicity. 65. The Committee therefore ordered that a news release be issued to ACCA s website and to the local press referring to Mr Enachu by name. Lubna Shuja Chairman 18 August 2015
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