CHAN CHIU KWOK, CHARLES v. THE HONG KONG INSTITUTE OF SURVEYORS

FAMV No. 6 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 6 OF 2013 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM
CACV NO. 227 OF 2011)

_____________________

_____________________

_________________________

DETERMINATION

_________________________

Mr Justice Ribeiro PJ:

1.  We dismissed this application for leave to appeal with reasons to be given later.  We now provide our reasons.

2.  The applicant was admitted as a member of The Hong Kong Institute of Surveyors (“HKIS”) in November 1988 and is currently a Fellow in the Professional Grade in the Division of General Practice.  He has also, since 1995, been a Registered Professional Surveyor (“RPS”).

3.  In 2010, HKIS received from the Securities and Futures Commission, an anonymous complaint about the applicant in relation to a valuation report prepared for a public listing.  HKIS took up the complaint. After initial investigations by a Preliminary Review Committee leading to the appointment of a Committee of Investigation, the applicant was informed that a formal charge would be drawn up and a Disciplinary Board appointed.  At that point, the applicant commenced proceedings against HKIS for judicial review. Reyes J[1] refused his application for judicial review and his appeal against such refusal was dismissed by the Court of Appeal.[2]  The Court of Appeal refused him leave to appeal to this Court[3] and his application for leave was therefore heard by the Appeal Committee.

4.  The applicant submits that two questions of great general or public importance arise from his application for judicial review as follows:

Question 1

“Where an individual is both a member of the Hong Kong Institute of Surveyors (“HKIS”) and also a registered professional surveyor within the meaning of s 2 Registered Professional Surveyors Ordinance, Cap 417 (“SRO”) and a complaint is made concerning his conduct to the HKIS, must it first refer the complaint to the Registrar of the Surveyors Registration Board established under s 3 SRO before giving consideration to initiating disciplinary proceedings itself under the By-laws of the HKIS?”

Question 2

“Where, under the HKIS Rules of Conduct, the Preliminary Review Committee (“PRC”) of the HKIS has decided that a Case made against a member should be dealt with by the Committee of Investigation and, pursuant to Rule 4.2.2 of the Rules of Conduct, the Honorary Secretary informs a member of that fact, must the member also be informed of the Case that was considered by the PRC at the same time?"

Question 1

5.  Kwan JA, writing for the Court of Appeal, held that Question 1 was not reasonably arguable by the applicant for the reasons given in her Ladyship’s judgment which upheld the reasoning of Reyes J.  We respectfully agree.

6.  Mr Philip Dykes SC, appearing for the applicant, submitted that the case involves an overlap and possible conflict between two sets of disciplinary procedures.  Stressing the contractual nature of the constitution, bye-laws and rules of conduct of the HKIS, he submitted that Question 1 was of great and general importance because it addresses a legal problem which arises whenever a statutory disciplinary code overlaps with a professional code which is contractually based.

7.  There is plainly a close connection between the two regulatory systems since members of HKIS play an important role in operating the SRO’s machinery.  But the two disciplinary schemes regulate distinct professional qualifications and there is nothing to require one scheme to give way to the other.  It is of little relevance that one set of rules has a contractual basis.

8.  HKIS began life as an unincorporated association and The Hong Kong Institute of Surveyors Ordinance (“HKISO”)[4] converted it into a statutory corporation.[5] HKISO s 10(1) provides that the constitution and bye-laws of the unincorporated HKIS shall be adopted as the constitution of the incorporated Institute.  Thus, although the constitution and bye-laws are contractual as between members and are not pieces of legislation, the HKISO conferred statutory recognition on those foundational documents, including the disciplinary provisions in the bye-laws[6] and rules of conduct.[7]

9.  HKIS lays down criteria for membership[8] based on professional qualifications, experience and standing.  A corporate member (a Fellow or a Member) is entitled to use the abbreviation “FHKIS” or “MHKIS” after his or her name and may also “present himself as a Professional Surveyor”.[9]  The ability to claim membership of HKIS is plainly a valuable entitlement and HKIS enforces a disciplinary code to safeguard the Institute’s reputation and to maintain high professional standards on the part of its members.[10]  If a member is expelled, he must return his diplomas of membership and “he shall not be entitled to use any designation or description which implies membership or former membership of the Institute”.[11]

10.  The Surveyors Registration Ordinance,[12] is concerned with a different professional status, that of “Registered Professional Surveyor” (“RPS”), appearing on a statutory register.  The SRO’s conditions for registration differ from the criteria for membership of HKIS.[13] Being a member of HKIS does serve as part of one set of qualifying criteria, but additional requirements (including ordinary residence in Hong Kong and being a “fit and proper person”) must also be met.  One may also be registered as a RPS without being a member of HKIS if certain alternative criteria are satisfied.  Someone who is registered is entitled to describe himself as a “Registered Professional Surveyor” and to use the initials “RPS”, with or without a qualifying division, after his name.  The register is open to inspection by the public.

11.  The SRO has its own disciplinary scheme for dealing with complaints or allegations of “misconduct or neglect in any professional respect”[14] by any RPS.  If the name of a RPS is removed from the register, that person must return any certificate issued and anyone who purports to use the RPS description or initials without being on the register may be restrained by court order.[15] 

12.  The two schemes therefore involve different professional qualifications. Each seeks to safeguard the value and reputation of the professional status it confers by laying down its own code of conduct, with its own disciplinary procedures.  A person who decides to apply both for membership of HKIS and for registration as a RPS, undertakes to be bound by the two separate disciplinary regimes.  They are self-contained schemes and there is nothing in either the SRO or the HKISO (or the HKIS’s constitutional documents) to suggest that the SRO regime is somehow to take precedence. 

13.  On the contrary, section 19(1)(e) of the SRO provides that the Registrar may remove the name of a RPS from the register “if he has notice that the (RPS) has ... ceased to hold a qualification by virtue of which he was registered...”  One such qualification, as noted above, is membership of the HKIS and it is obviously the case that a person may cease to hold the HKIS qualification as a result of HKIS disciplinary proceedings.  It follows that by section 19(1)(e), the SRO implicitly envisages that there may indeed be prior HKIS disciplinary proceedings, leading subsequently to removal from the register under the SRO.

14.  There is accordingly simply no basis for Mr Dykes’s submission that where, as in the present case, HKIS receives a complaint regarding one of its Fellows, HKIS is somehow precluded from dealing with that complaint in accordance with its constitution and bye-laws (which have received statutory recognition), but is somehow bound to refer that complaint to the Registrar of the Surveyors Registration Board under SRO, section 3 “before giving consideration to initiating disciplinary proceedings in itself under the Bye-laws of the HKIS”.  That proposition is not reasonably arguable.

Question 2

15.  Question 2 is fact-specific and does not raise a question of great general or public importance.  Mr Dykes has had to place his application on the “or otherwise” basis.  We will content ourselves with saying that we fully agree with the reasoning of Kwan JA at paragraphs 46-57 of her judgment and likewise conclude that there are no grounds for granting leave on that exceptional basis.