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HCAL 6/2011
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 6 OF 2011
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IN THE MATTER of an Application for Leave to Apply for Judicial Review by CHAN CHIU KWOK, CHARLES under Order 53, Rule 3(2) of the Rules of the High Court
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and
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IN THE MATTER of Surveyors Registration Ordinance, Cap. 417 and The Hong Kong Institute of Surveyors Ordinance, Cap. 1148
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BETWEEN
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CHAN CHIU KWOK, CHARLES |
Applicant |
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and
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THE HONG KONG INSTITUTE OF SURVEYORS |
Respondent |
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Before: Hon Reyes J in Court
Date of Hearing: 26 September 2011
Date of Judgment: 26 September 2011
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J U D G M E N T
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I. INTRODUCTION
1. Mr Chan is a surveyor.
2. Mr Chan is a member of the Hong Kong Institute of Surveyors (HKIS). The HKIS, previously an unincorporated association, became a body corporate in 1990 pursuant to the Hong Kong Institute of Surveyors Ordinance (Cap. 1148) (HKISO). The HKIS’ Bye-Laws now form part of its constitution (see HKISO s.10). The Bye-Laws are non-statutory in the sense that the HKIS can promulgate or amend them without reference to LegCo.
3. Mr Chan is also a registered professional surveyor under the Surveyors Registration Ordinance (Cap. 417) (SRO). He became so registered by reason (among other matters) of his being a member of the HKIS. The SRO became law in 1991.
4. In June 2010 the HKIS informed Mr Chan that, a complaint having been received against him, a Committee of Investigation (COI) had been appointed to look into the matter. In November 2010 the HKIS wrote to Mr Chan that, upon the COI’s recommendation, a formal charge would be drawn up against him and a Disciplinary Board would be appointed to hear the charge.
5. By this judicial review, Mr Chan complains that the HKIS’ decision to invoke disciplinary procedures against him pursuant to its Rules of Conduct was unlawful. According to Mr Chan, if there are to be disciplinary proceedings for alleged misconduct, such proceedings should have been initiated in accordance with the SRO. It is Mr Chan’s case that the SRO takes precedence over the HKISO and HKIS’ Bye-Laws.
6. In the alternative, Mr Chan complains that, in breach of the HKIS’ Rules of Conduct (in particular, Rule 4.2.2), he has not been informed of the Case against him. HKIS’ Bye-Laws define the Case as “the complaint, allegation or incident” alleged against a member.
7. For the foregoing reasons, Mr Chan asks that the disciplinary proceedings against him be quashed. Note that there has been no complaint about Mr Chan to the Surveyors Registration Board formed under the SRO.
II. DISCUSSION
A. Whether SRO trumps HKIS’ Bye-Laws and Rules of Conduct
8. Mr Philip Dykes SC (appearing for Mr Chan) acknowledges that, in disciplinary matters, there is overlap between the HKIS’ Bye-Laws and Rules of Conduct on the one hand and SRO Part IV on the other. On the face of the matter, Mr Chan is amenable to 2 different disciplinary regimes.
9. But Mr Dykes submits that, when the SRO was enacted in 1991, LegCo must have known of the disciplinary rules in the HKIS’ Bye-Laws and Rules of Conduct and the possibility of overlap. Mr Dykes suggests that, in passing the SRO, LegCo “must have decided” that it was inappropriate for registered professional surveyors to be subject to a non-statutory disciplinary regime such as that found in the HKIS’ Bye-Laws and Rules of Conduct.
10. According to Mr Dykes, if LegCo wished the conduct of registered professional surveyors also to be dealt with under the HKIS’ regime, it would not have enacted SRO Part IV. Alternatively, Mr Dykes suggests that LegCo would have included a provision which avoided the possibility of double detriment.
11. Accordingly, Mr Dykes reasons that the disciplinary regime in the SRO must trump the HKIS’ Bye-Laws and Rules of Conduct. So long as one is a registered professional surveyor under the SRO, one should not be subject to the disciplinary regime under the HKIS’ Bye-Laws and Rules of Conduct. If there are to be disciplinary proceedings against Mr Chan, they should (Mr Dykes concludes) proceed under the SRO.
12. In aid of his argument, Mr Dykes refers to the “Saving” provision in HKISO s.12. That states that nothing in the HKISO “shall affect or be deemed to affect ... the rights ... of any persons except such as are mentioned or referred to in this Ordinance ...”
13. I am not persuaded by Mr Dykes’ submission.
14. The HKISO (as it long title states) caused the HKIS to become a corporate body. Following the HKISO’s enactment, the members of the previously unincorporated body became members of the newly incorporated HKIS. Other persons could be elected to membership in accordance with the HKIS’ constitution (including its Bye-Laws). See HKISO s. 9.
15. Although “non-statutory” in the sense defined above, the HKIS’ Bye-Laws function as a contract among the members of the HKIS. When a person becomes a member of the HKIS, he or she agrees to be governed by its Bye-Laws and Rules of Conduct, including the disciplinary regulations contained there. In other words, upon applying for or accepting election as a member of the HKIS, a person voluntarily agrees to be subject (among other things) to the disciplinary processes set out in the HKIS’ Bye-Laws and Rules of Conduct.
16. In those premises, it is hard to see the relevance of LegCo’s views (if any) about the duality of disciplinary regimes under the HKIS’ Bye-Laws and SRO Part IV.
17. Nothing in the SRO prevents a person from freely agreeing before or after becoming a registered professional surveyor to be contractually bound by the HKIS’ Bye-Laws.
18. Nothing in the SRO states that, where a person becomes a registered professional surveyor on the strength of membership in the HKIS, one is suddenly absolved from obligations which one has voluntarily undertaken towards other members of the HKIS in relation to disciplinary matters.
19. There are a number of routes to becoming a registered professional surveyor. A person can become a registered professional surveyor on the strength of qualifications other than HKIS membership. Nothing in the SRO suggests that, if such person later joins the HKIS, the person may disregard the HKIS’ Bye-Laws in relation to disciplinary matters. The person’s voluntary agreement to be bound by the HKIS’ Bye-Laws upon becoming a member is not magically trumped by reason only of that person being a registered professional surveyor.
20. If LegCo meant there to be some other result along the lines Mr Dykes contends, one would have expected clearer words to that effect in the SRO. LegCo cannot be assumed to have intended contractual obligations, voluntarily undertaken, to be tacitly abrogated by the mere passing of an ordinance.
21. The Saving provision in HKISO s.12 does not advance matters. It certainly does not mean that a person can ignore contractual undertakings to the HKIS and its members.
22. Mr Dykes further attempts to support his argument by reference to Bye-Law 6.5. That states that an HKIS member aggrieved by the decision of the General Council may contest the decision in “a Court of Law”. Mr Dykes submits that a Bye-Law cannot create a right of appeal to the Court.
23. I do not see how the point (if valid) leads anywhere. But in any event I do not think that Mr Dykes is right. There is no question of the Bye-Law “creating” a right of access or appeal to the Court. The Bye-Law simply recognises a legal reality.
24. If the HKIS has misconducted disciplinary proceedings, that could be a breach of the contract among members contained in or evidenced by the Bye-Laws. Such breach would then be amenable to redress through Court proceedings, much as any other breach of contract.
25. Alternatively, it may be possible (it is unnecessary for me to decide the point definitively in these proceedings) for the misconduct (depending on its precise nature) to be rectified by way of judicial review proceedings before the Court.
B. Whether Rule 4.2.2 breached
26. HKIS’ Rules of Conduct provide:-
“4.2.1 If the Preliminary Review Committee has decided that the Case shall be dealt with by the Committee of Investigation, the Honorary Secretary of the Institute shall provide the Committee of Investigation that has been appointed by the President with all relevant documents in connection with the Case.
4.2.2 The Honorary Secretary of the Institute shall inform the Member of the Case made against him and shall also inform him that a Committee of Investigation has been appointed.
....”
27. Mr Dykes complains that Mr Chan was not provided with the Case against him when he was informed of the creation of a COI. This (Mr Dykes says) was a breach of Rule 4.2.2.
28. I disagree.
29. As Mr Gerard McCoy SC (appearing for HKIS) points out, fairly read, Rule 4.2.2 does not say that the Case has to be provided to a member at precisely the time that one is informed of the formation of a COI.
30. Obviously, as a matter of fairness, the Case must be provided in good time for the member to prepare and deal with the same. Here, a formal charge against Mr Chan has yet to be drawn up. Matters have instead been brought to a halt pending the outcome of these judicial review proceedings.
31. In the meantime, the HKIS has never intimated that it would refuse to provide Mr Chan with a copy of the Case. In fact, the HKIS has never stated that it would refuse to provide the Case at any time on or before a charge is drawn.
32. It follows that the complaint of a breach of Rule 4.2.2 is premature. On the contrary, given Rule 4.2.2, there is every likelihood that, following disposal of this judicial review by this Judgment, Mr Chan will be provided with the Case in sufficient time for him to prepare and deal with the formal charge.
III. CONCLUSION
33. The judicial review is dismissed. I shall now hear the parties on costs and consequential orders.
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(A. T. Reyes)
Judge of the Court of First Instance
High Court |
Mr Philip Dykes, SC instructed by Messrs Mayer Brown JSM, for the Applicant
Mr Gerard McCoy, SC and Mr Daniel Hui, instructed by Messrs Wong & Fok, for the Respondent
Please refer to CACV227/2011 for the relevant appeal(s) to the Court of Appeal. |