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

CACV 227/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 227 OF 2011

(ON APPEAL FROM HCAL NO. 6 OF 2011)

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REASONS FOR JUDGMENT

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Hon Kwan JA:

1. This is an appeal from the judgment of Reyes J on 26 September 2011, in which he dismissed the application for judicial review brought by Chan Chiu Kwok Charles (“Mr Chan”). We dismissed the appeal at the conclusion of the hearing and these are the reasons for judgment.

2. Two broad issues are raised in this appeal:

(1)   whether Part IV of the Surveyors Registration Ordinance, Cap 417 (“SRO”) should be construed in such a manner as to override the disciplinary powers of the Hong Kong Institute of Surveyors (“HKIS”) against Mr Chan under the Hong Kong Institute of Surveyors Ordinance, Cap 1148 (“HKISO”), the Bye-Laws and the Rules of Conduct of the HKIS; and

(2)   whether the HKIS has breached Rule 4.2.2 of the Rules of Conduct in not providing Mr Chan with “the Case” made against him (which is defined in Rule 4.1.1 to mean “complaint/allegation or incident”) when the HKIS informed him that a Committee of Investigation (“CoI”) has been appointed.

3. We have before us an application by the HKIS for leave to adduce further evidence on appeal relating to the service of documents in connection with the Case after the judgment of Reyes J.  Mr Chan also sought leave to adduce evidence on appeal on various matters: his explanation why he had not collected the documents in connection with the Case served at his correspondence address; a letter dated 2 July 2011 from the Royal Institution of Chartered Surveyors (“RICS”) regarding an investigation of an anonymous complaint against him and a letter from RICS to him dated 11 April 2012 stating that no further investigations or disciplinary action are required; and a letter dated 8 June 2012 from the HKIS to a member against whom a complaint was made seeking further information from that member.

4. With the exception of the letter of RICS dated 2 July 2011, all the further evidence is in relation to matters which have occurred after the hearing before Reyes J.  The letter of RICS informing Mr Chan that his case would be closed must be read with the first letter which initiated the investigation.  We think it proper in this instance to exercise our discretion to admit all the further evidence both sides sought to adduce on appeal.

The background

5. The relevant background matters may be stated as follows.

6. The HKIS was founded in April 1984 and was registered under the Societies Ordinance, Cap 151.  Its Constitution provides for various grades of members, one of them being the Professional Grade consisting of Fellows and Members.  Only members in the Professional Grade are referred to in the Constitution as Corporate Members[1].  A Corporate Member may present himself as a Professional Surveyor[2].  The rights, privileges or obligations of members in the various grades are provided in the Constitution and the Bye-Laws[3].  The governing body of the HKIS is the General Council[4].

7. The Bye-Laws provide that the Honorary Secretary shall keep a Register of all members in the various grades[5].  Professional conduct is governed by Part VI of the Bye-Laws.  All Corporate Members are required to observe “a high and honourable standard of professional conduct” and guidance notes on such standards shall be issued by the General Council from time to time[6].

8. Guidance Notes in connection with Part VI of the Bye-Laws were approved by the General Council on 8 November 2001 and they were the Rules of Conduct mentioned earlier.

9. The disciplinary powers and procedure of the HKIS in the regime set up by the Bye-Laws and the Rules of Conduct will be discussed separately.

10. In January 1990, the HKIS was statutorily incorporated by virtue of HKISO.  There is established a General Council in which is vested the management of the HKIS and all its powers, except so far as HKISO or the Constitution otherwise requires[7].  The Constitution and Bye-Laws of the unincorporated body at the commencement of HKISO are adopted as the constitution of the body corporate[8].

11. In July 1991, SRO was enacted. Its preamble stated it is to provide for “registration of professional surveyors, the recognition of divisions within the profession and disciplinary control of the professional activities of registered professional surveyors, and for related matters”.  A body corporate known as the Surveyors Registration Board (“the Board”) was set up[9].  Its functions include establishing and maintaining a register of registered professional surveyors (“RPS”); setting and reviewing the qualification standards for registration as RPS and related registration matters; receiving, examining, accepting or rejecting applications for registration and renewal of registration as RPS; dealing with disciplinary offences in accordance with SRO[10].  The Board is empowered to make rules for the conduct and discipline of RPS[11].

12. Registration as RPS of those qualified under RSO is not compulsory[12], but there will be obvious benefits accruing from the use of the title of RPS[13]. As stated by the Secretary for Planning, Environment and Lands in moving the second reading of the Surveyors Registration Bill 1991:

“The introduction of registration does not mean there will be a “close shop”, or that the professional institutes will be able to operate restrictive practices. The Bills provide for registration to be administered by Registration Boards which are appointed by the councils of the institutes[14] but are independent of the professional institutes in their operation.”[15]

13. In other words, SRO does not govern, regulate or restrict the practice of professional surveyors, including Corporate Members of HKIS who are not RPS.

14. As for the qualifications for registration as RPS, the Board may not register a person as such unless –

“(a) he-

(i) is a member of the Institute[16] [i.e. HKIS] within a division; or

(ii) is a member of a surveying body the membership of which is accepted by the Board as being of a standard not less than that of the Institute as a member within a division[17]; or

(iii) has passed such examination in surveying and other subjects and has received such training and experience as the Board may accept, either generally or in a particular case, as a qualification of a standard not less than that of a member of the Institute within a division; and

(b) he satisfies the Board that he has had 1 year's relevant professional experience in Hong Kong before the date of his application for registration; and

(c) he is ordinarily resident in Hong Kong; and

(d) he is not the subject of an inquiry committee or a disciplinary order under Part IV which precludes him from being registered under this Ordinance [i.e. SRO]; and

(e) he satisfies the Board by declaration in writing that he is competent to practise in the relevant division; and

(f) he is a fit and proper person to be registered.”[18]

15. The Registrar appointed by the Board may remove the name of an RPS from the register if he has notice that the RPS has ceased to hold a qualification by virtue of which he was registered[19]. And the Registrar shall remove a name from the register if he receives an order of the Court of Final Appeal, the Court of Appeal or an inquiry committee directing that the name be removed[20].

16. The provisions in SRO relating to disciplinary proceedings are in Part IV and they will be discussed separately.

17. Mr Chan was admitted as a Member of the HKIS in November 1988 and is currently a Fellow in the Professional Grade.  He is a Corporate Member of the HKIS in the division of General Practice.  He is also a member of RICS.  In his application for Fellow Membership dated 30 October 1995, he made a declaration by which he undertook, in the event of his election to Fellow Membership, to abide by the Constitution and Bye-Laws of the HKIS.  By virtue of his qualification as a Corporate Member of the HKIS, he applied to the Board for registration as RPS and was accepted in July 1995.  His registration as RPS has been renewed annually ever since.

18. On 14 January 2010, the HKIS received from the Securities and Futures Commission an anonymous complaint against Mr Chan forwarded to the Commission by the Independent Commission Against Corruption.  The complaint arose out of a valuation report prepared by Mr Chan in relation to the public listing of a company.  The complaint was dealt with by the HKIS under the disciplinary procedure in the Rules of Conduct.

19. On 24 May 2010, the aforesaid complaint was referred to the Preliminary Investigation Committee.  On 14 June 2010, the Preliminary Investigation Committee decided to refer the complaint to a CoI for further investigation.  By a letter dated 25 June 2010, the Honorary Secretary informed Mr Chan that a complaint had been received by the HKIS with regard to his professional conduct, and that a CoI has been appointed, and he “will be informed of further details in due course”.  No details of the complaint were disclosed in that letter.

20. By a letter dated 5 November 2010, the HKIS informed Mr Chan that upon recommendation of the CoI, “a formal charge will be drawn up, and that a Disciplinary Board will be appointed”.

21. Mr Chan’s solicitors wrote to the HKIS on 20 January 2011 stating that its decision to invoke the disciplinary procedures in the Rules of Conduct was unlawful as the provisions in SRO regulating disciplinary proceedings took precedence.  The solicitors pointed out there was breach of Rule 4.2.2 of the Rules of Conduct in that Mr Chan had not been informed of “the Case” as the term is defined in Rule 4.1.1.  They requested the HKIS to cease all disciplinary procedures against Mr Chan and revoke all decisions relating thereto.  The HKIS replied on 31 January 2011 expressing disagreement.

22. The application for leave to apply for judicial review was issued on 2 February 2011.  The decisions in respect of which relief is sought are: (1) the decision of the President of the HKIS on 25 June 2010 to appoint a CoI to consider a complaint against Mr Chan; (2) the decision of the CoI on 5 November 2011 to recommend that the complaint should become a formal charge; and (3) the decision of the Office Bearers of the General Council on 5 November 2011 that the recommendation of the CoI be accepted and that the complaint should become a formal charge.

23. Mr Chan sought orders of certiorari to quash these decisions, an order of prohibition to prevent the HKIS from proceeding with the disciplinary proceedings against him, and a declaration that on the true construction of SRO and HKISO he is not liable to be proceeded against by the HKIS in respect of a complaint of professional misconduct without such complaint being first dealt with and determined in accordance with Part IV of SRO.

24. The disciplinary proceedings by HKIS against Mr Chan were brought to a halt pending the outcome of the judicial review, before a formal charge was drawn up.  After the dismissal of the application for judicial review by Reyes J on 26 September 2011, the HKIS resumed the disciplinary proceedings and sent documents in connection with the Case to Mr Chan in October.  When Mr Chan lodged an appeal against the decision of Reyes J on 25 October 2011, the HKIS once again halted the disciplinary proceedings before a formal charge was drawn up, pending the determination of this appeal.

Disciplinary proceedings under the Bye-Laws and Rules of Conduct

25. Mr Dykes, SC, who appeared for Mr Chan, has helpfully set out in an annex to his submission a comparison between the disciplinary proceedings conducted by the HKIS and the disciplinary proceedings under SRO.  I will first mention the salient features under the regime of the HKIS.

26. Professional conduct is dealt with under Part VI of the Bye-Laws.  The General Council is empowered to suspend for such period as it thinks fit or expel any Corporate Member who in its opinion “has failed to observe a high and honourable standard of professional conduct or is believed to be, or have been, guilty of any act or conduct detrimental to the best interest of [the HKIS] or its members”[21].  The Rules of Conduct make detailed provision of the standard of conduct, breach of which would result in disciplinary proceedings by the HKIS[22]. If a member has been found by the Disciplinary Board to have contravened the standard of conduct or any provisions of the Bye-Laws, the General Council shall have power to take one or more of the following courses of action: to reprimand or severely reprimand the member; to require the member to give a written undertaking to refrain from continuing or repeating the conduct found to have constituted the contravention; to suspend the member for such periods as the General Council may determine; to expel the member[23].

27. When a complaint is made against a member of a breach of the Constitution, Bye-Laws or Rules of Conduct, the President shall refer such complaint/allegation or incident (defined as “the Case”) to the Preliminary Review Committee[24], and the latter shall decide whether a CoI shall be appointed to deal with the Case[25]. The Honorary Secretary is charged with the duty to inform the member of the Case and that a CoI has been appointed[26]. The CoI shall consider the documents provided by the Honorary Secretary and may “either reach a conclusion based on the documents only or call for further information or evidence from the complainant, the Member under investigation or from any other person”[27]. The CoI shall decide whether the complaint should become a formal charge and make a recommendation to the Office Bearers of the General Council accordingly[28]. In the event of the Office Bearers accepting the CoI’s recommendation the complaint should become a formal charge, the member shall be informed of the decision and the President shall appoint a Disciplinary Board[29].

28. Detailed provisions are made on the procedure that followed after a formal charge is drawn up, covering matters such as the submission of a written answer by way of defence to the formal charge, the service of list of documents on both sides, the holding of a hearing[30]. The Disciplinary Board shall report its finding to the General Council in writing[31] and the General Council will decide whether to impose any sanction[32].

29. Where the General Council decides to suspend or expel a member, the member aggrieved by the decision of the General Council has the right to give notice within 30 days of such suspension or expulsion of his intention to contest the decision of the General Council with respect to a question of law in a Court of Law[33].  If no question of law arises, the decision of the General Council to suspend or expel a member shall be final[34].  Should the Court of Law uphold the appeal, the General Council or its appointed committee shall re-investigate the complaint having regard to its determination on the question of law concerned[35].

Disciplinary proceedings under SRO

30. “Disciplinary offence” is defined in SRO[36]. One of the instances in which an RPS commits a disciplinary offence is when he “commits misconduct or neglect in any professional respect”[37].

31. Disciplinary proceedings are triggered “where the Registrar receives a complaint concerning a disciplinary offence” and when that happens, “the Registrar shall submit the facts to 2 members of the Board appointed for the purpose, and the members, in consultation with the Registrar, shall determine whether the complaint should be referred to the Board”[38]. If a determination is made to refer the complaint to the Board, the Board may establish an inquiry committee to determine whether or not a disciplinary offence has been committed[39]. The inquiry committee will hear evidence and make a finding[40]. It has power to summon any person to attend the inquiry to give evidence or produce any document, and failure to attend when summoned is an offence[41].

32. In deciding whether a person has committed a disciplinary offence, the inquiry committee may have regard to any code of professional conduct or practice promulgated by the Board or currently in use by the HKIS[42]. If a finding is made that a disciplinary offence has been committed, the inquiry committee’s decision and any proposed order will be submitted to the Board for review[43]. Sanctions that may be made by the inquiry committee include ordering the Registrar to remove the name of the RPS from the register, ordering the Registrar to remove the name of the RPS from the register for a period, reprimanding the RPS in writing and ordering the Registrar to record this on the register, ordering a sanction be suspended subject to conditions[44].

33. The review committee may confirm or reverse the decision of the inquiry committee or recommend that any proposed order of the inquiry committee be varied[45]. Any person aggrieved by any decision or order of the inquiry committee may appeal to the Court of Appeal and the Court of Appeal may affirm, reverse or vary the decision of the inquiry committee[46].

34. As found by Reyes J, on the face of the matter, Mr Chan is subject to two different disciplinary regimes as he is a Corporate Member of the HKIS and an RPS under SRO.  And as the judge has noted, there is overlap between the Bye-Laws and Rules of Conduct on the one hand and SRO Part IV on the other[47]. Mr Chan was not dealt with under SRO as there has been no complaint about him to the Board[48]. This appears to be the first time that a member of the HKIS has challenged the lawfulness of the disciplinary proceedings conducted by the HKIS.  According to the records of disciplinary sanctions made by the HKIS from 1998 to 2010, the total number of cases resulted in disciplinary sanctions taken by the General Council is 13.  In contrast, there was just one case which resulted in disciplinary orders made by the Board according to the records of disciplinary orders of the Board from 1999 to 2010 and that case involved a conviction by the court[49].

The 1^st issue: if SRO takes precedence over the Bye-Laws and Rules of Conduct

35. Mr Dykes submitted that SRO should take precedence.  He was not arguing that the disciplinary proceedings against Mr Chan should be dealt with exclusively under SRO.  It was his contention that on the true construction of SRO and HKISO, if there was to be any disciplinary action against an RPS, it must first be initiated under the disciplinary scheme under Part IV of SRO.

36. Mr Dykes accepted there is nothing objectionable that a person in the position of Mr Chan may face two sets of disciplinary proceedings.  And assuming that a relevant finding was made by an inquiry committee under SRO, a disciplinary board of the HKIS could take that into consideration without being bound by it, see Secretary of State for Education and Skills v Mairs [2005] EWHC 996 (Admin); [2005] ICR 1714 paras 37 to 39. What he submitted would be objectionable is for an RPS to lose registration under SRO by virtue of misconduct established by the HKIS when the charge of misconduct has yet to be dealt with and would be dealt with differently under SRO.  Of particular importance is the unrestricted right of appeal against findings of fact and law of an inquiry committee under section 28 of SRO, in contrast to the Bye-Laws by which an appeal is only available with respect to a question of law in a decision of the General Council to suspend or expel a member.

37. If the HKIS expels a member under the Bye-Laws, the member will cease to hold the qualification by virtue of which he was registered and the Registrar may remove his name[50]. Alternatively, an application to renew registration as an RPS may be rejected by the Board as the applicant does not continue to comply with the requirements for registration[51]. There is a right to appeal to the Court of Appeal in the latter situation (rejection of application to renew registration) but not in respect of the former (removal by Registrar from the register)[52].

38. Mr Dykes repeated his submission before Reyes J the solution to this is to construe SRO on the basis that the legislature must have known, at the time of its enactment in 1991, of the provisions for disciplinary proceedings in the Bye-Laws and Rules of Conduct, and that the legislature must have intended Part IV of SRO to override such provisions in the Bye-Laws and Rules of Conduct insofar as those provisions were inconsistent with SRO.  He contended alternatively that if the legislature had really intended disciplinary issues affecting an RPS would continue to be dealt with by the HKIS, it would not have included RPS within the net of disciplinary offences in section 20 of SRO, or would have included a provision that made clear the disciplinary rules of the HKIS would continue to govern surveyors who are both RPS and members of the HKIS.  So where a complaint about an RPS was referred to the HKIS, the HKIS should pass the complaint to the Registrar for the latter to deal with under SRO.  Otherwise, the disciplinary regime under SRO may be undermined by the related domestic regime if the HKIS were to introduce different procedures and penalties for the same type of misconduct.

39. This submission was rejected by the judge, who held that the Bye-Laws function as a contract among the members of the HKIS, in that its members agree to be governed by its Bye-Laws and Rules of Conduct, including the disciplinary provisions.  Upon applying for or accepting election as a member of the HKIS, a person voluntarily agrees to be subject to the disciplinary processes in the Bye-Laws and Rules of Conduct.  In those premises, the judge did not think any views of the legislature about the duality of disciplinary regimes are relevant.  To the contrary, the legislature cannot be assumed to have intended contractual obligations, voluntarily undertaken, to be tacitly abrogated by the passing of an ordinance; one would have expected clearer words to achieve such an effect as contended by Mr Dykes[53]. The pertinent parts of the judgment read as follows:

“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’s 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.”

40. The judge further pointed out that a person can become an RPS on the strength of qualifications other than HKIS membership.  Nothing in SRO suggests that if this person later joins the HKIS, he may disregard the HKIS Bye-Laws in relation to disciplinary matters.  His voluntary agreement to be bound by the Bye-Laws is not trumped by reason only of his being an RPS.[54]

41. I agree with the judge, whose reasons appear to me entirely convincing.  As Mr McCoy, SC for the HKIS has pointed out, the submission of Mr Dykes does not engage the above salient parts of the judgment.

42. I agree also with Mr McCoy the position taken by Mr Chan regarding the investigation of RICS (which concerned the same complaint against him and was forwarded to RICS by the HKIS)[55] would appear to be contrary to his position concerning the disciplinary proceedings conducted by the HKIS.  In the RICS investigation, Mr Chan explained his case to RICS and in the end RICS decided no further investigations or disciplinary action are required.  He did not object to such investigation or disciplinary proceedings by RICS, despite his status as an RPS.  He did not contend SRO should take precedence over the separate regime of RICS in disciplinary matters.

43. Mr McCoy made a further point that Mr Chan could have taken simple action to prevent removal of his name as an RPS from the register of the Board if he should cease to hold a qualification by virtue of which he was registered, from which there is no right to appeal to the Court of Appeal.  Although he was registered by virtue of his HKIS membership, since he is also a member of RICS and can qualify for registration by virtue of that route, he could have notified the Registrar of a change of the qualification on which his registration is based[56]. If that is done, the Registrar may not remove his name as an RPS in the event he ceases to be a member of the HKIS as a result of sanction imposed in the HKIS disciplinary proceedings.  One need not consider the implications of an unrestricted right of appeal under section 28 of SRO.

44. I agree with Mr McCoy on this as well.  I would add that if the Board rejects Mr Chan’s application for renewal if he ceases to be a member of the HKIS owing to sanction imposed by the HKIS and that the Board is satisfied he does not continue to comply with the requirements for registration as he is not a fit and proper person to be registered[57], he has an unrestricted right of appeal under section 28 of SRO[58].

45. For the above reasons, I reject Mr Dykes’ submissions on the first issue.

The 2^nd issue: if there was breach of Rule 4.2.2

46. The second issue arises under the domestic rules of the HKIS and is independent of the first issue.  There appears to be no dispute that the recommendation of the CoI that the subject matter of the complaint should become a formal charge and the acceptance by the Office Bearers of the General Council of such recommendation, which would lead to the appointment of a Disciplinary Board, should be amenable to judicial review.

47. Rule 4.2.2 provides as follows:

“The Honorary Secretary of the [HKIS] shall inform the Member of the Case made against him and shall also inform him that a Committee of Investigation has been appointed.”

48. The complaint here is that Mr Chan was not provided with the Case against him (as defined in Rule 4.1.1) when the HKIS informed him a CoI has been appointed.  Mr Dykes contended there was a breach of Rule 4.2.2 as on a proper construction of the relevant rules in Rules 4.2.1 to 4.2.7, there is a process with a clear chronology with Rule 4.2.2 appearing between Rule 4.2.1 (the Preliminary Review Committee providing its documents to the CoI via the Honorary Secretary) and Rule 4.2.3 (the CoI’s consideration of the materials provided to it by the Honorary Secretary).  Hence, Rule 4.2.2 requires that the member be informed not only of the Case against him but also of the fact that a CoI has been appointed and the purpose of this is to give him a chance to comment on the Case and transmit his comments to the CoI.  He submitted that Rule 4.2.2 should be complied with and the member informed of the Case against him before the CoI makes its recommendation in Rules 4.2.5 to 4.2.7 whether the subject matter of the complaint should become a formal charge, otherwise the CoI would have made a final decision on whether to bring a formal charge on incomplete information.

49. The judge agreed with the submission of Mr McCoy that Rule 4.2.2 does not say that the Case has to be provided to a member at precisely the time that he is informed of the formation of a CoI[59]. I do not think this is a complete answer to Mr Dykes’ submission.

50. The judge went on to hold that the complaint of a breach of Rule 4.2.2 is premature as a formal charge against Mr Chan has yet to be drawn up and matters have been brought to a halt pending the outcome of the judicial review proceedings.  The HKIS has never indicated it would refuse to provide the Case at any time on or before a formal charge is drawn.  On the contrary, there is every likelihood that, following disposal of the judicial review, Mr Chan will be provided with the Case in sufficient time for him to deal with the formal charge.  It follows that the complaint of a breach of Rule 4.2.2 is premature[60].

51. We know from the further evidence adduced in this appeal that the HKIS had indeed served Mr Chan with the documents in connection with the Case after the judgment of Reyes J.

52. Mr Dykes submitted that the judge appeared to have elided the right to notice of a disciplinary charge (when the formal charge has been drawn up and the process at Rule 4.3 begins) with the right to notice of “the Case” at a stage before a formal charge is drawn up.  These are different rights.  The first right is required by the common law (Ridge v Baldwin [1964] AC 40 at 113 to 114), but the second right which is provided in Rule 4.2.2 is not based in the common law.  He submitted that it is an additional procedural protection designed to make sure that disciplinary proceedings commence only after there has been a considered review of the sufficiency of the materials said to warrant going ahead with them.  It would benefit both the member under investigation as he has a chance to demonstrate there is no substance in the complaint, and the HKIS is spared the expense of an avoidable inquiry.

53. I would agree with Mr Dykes up to a point.  The judge was in error in that he had appeared to elide two different rights – the right to notice of a formal charge and the right to notice of “the Case” at the stage before a formal charge is drawn up.  The question is what is entailed in the second kind of right on a proper construction of Rule 4.2.2 – whether this would require the member to be informed of the Case against him before the CoI makes its recommendation whether to bring a formal charge.  This is purely a question of construction of the relevant rules.  The further evidence adduced on appeal that RICS was satisfied with the explanation provided by Mr Chan and decided not to proceed further with investigations or disciplinary action against him is of no relevance.

54. In my view, the purpose of ensuring that disciplinary proceedings commence only after there has been a considered review of the sufficiency of the materials said to warrant going ahead with them would not be negated merely because a member under investigation is not provided with the Case before the CoI makes a final decision whether to bring a formal charge.

55. It is pertinent to note Rule 4.2.3 which reads as follows:

“The [CoI] shall consider the documents provided by the Honorary Secretary of the [HKIS] and may either reach a conclusion based on the documents only or call for further information or evidence from the complainant, the Member under investigation or from any other person.”

56. By this rule, the CoI is given power and discretion as to how best it should carry out its task of investigating the complaint.  It may reach a conclusion based only on the relevant documents provided to it by the Honorary Secretary under Rule 4.2.1.  It may call for further information or evidence from the complainant, the member under investigation or any other person before making a decision on the complaint.  In the event it calls for further information or evidence from the member concerned, he would have the opportunity to provide an explanation to the CoI before a decision is made, as in the case of the member who was requested to provide further information by the HKIS by letter dated 8 June 2012.

57. In my judgment, on a proper construction of the relevant rules, there is no justification to read Rule 4.2.2 as importing an invariable requirement that the Case must have been provided to the member under investigation before the CoI is to make a final decision on whether to bring a formal charge, as it is clear from Rule 4.2.3 that the CoI is empowered to approach the task of investigation in a flexible manner.

58. I would uphold the decision of the judge on the second issue for different reasons.

59. For the above reasons, the appeal is dismissed with costs to the HKIS, with a certificate for two counsel.

Hon Fok JA:

60. I agree with the Reasons for Judgment of Kwan JA.

Hon Barma J:

61. I agree with the Reasons for Judgment of Kwan JA.