LEUNG SIU KWONG , CHRISTOPHER v. AN INQUIRY COMMITTEE

IN THE COURT OF APPEAL

1995, No. 254
(Civil)

Headnote

Disciplinary proceedings against registered architect under Part IV Architects Registration Ordinance - Appeal to Court of Appeal by architect under s29(1) of the Ordinance - Procedural unfairness by Inquiry Committee - No findings of fact - Inquiry Committee found misconduct when such misconduct has not been alleged in the charge.

Held (Court of Appeal): Appeal allowed and determination of Inquiry Committee quashed.

IN THE COURT OF APPEAL

1995, No. 254
(Civil)

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J U D G M E N T

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Litton, V.-P.:

Introduction

1. This is an appeal by a registered architect against an order of an Inquiry Committee dated 18 September 1995, made following disciplinary proceedings brought against him under Part IV of the Architects Registration Ordinance. The order is as follows:

"... that the Registrar do remove the name of the registered architect Leung Siu Kwong ("the Registered Architect") from the register of the Architects Registration Board for a period of six months, such order to be suspended for a period of two years from the date hereof ("the operational period") on the following conditions:

1. that no disciplinary offence is committed by the Registered Architect during the operational period; and

2. that in the event of a disciplinary offence being committed by the Registered Architect during the operational period ("the subsequent offence"), the Inquiry Committee dealing with the subsequent offence shall be empowered to activate the suspended order on such terms as it thinks fit."

2. The appeal comes to this court pursuant to section 29(1)of the Architects Registration Ordinance.

The legislative framework

3. In the light of what has occurred in this case, it is necessary to examine briefly the legislative framework under which disciplinary proceedings against registered architects are brought.

4. Section 21(1)(a) - with which this case is concerned - provides:

"(1) A registered architect commits a disciplinary offence if he -

(a) commits misconduct or neglect in any professional respect;"

5. Sub-section 3 provides that when the Registrar receives a complaint concerning a disciplinary offence, he shall submit the facts to two members of the Architects Registration Board for the purpose of determining (in consultation with the Registrar) whether the complaint should be referred to the Board.

6. Section 22 of the Ordinance then provides:

"22. Inquiry committee and rules of conduct

(1) The Board may refer any complaint concerning a disciplinary offence to an inquiry committee for decision, and for that purpose the Board may establish an inquiry committee of not less than 3 members of the Institute to determine whether or not the registered architect against whom the complaint is made has committed a disciplinary offence.

(2) The Board may make rules providing for the conduct of its inquiries by an inquiry committee and for other matters relating to the investigation of an alleged disciplinary offence.

(3) ...."

7. Disciplinary Rules have been made by the Board to regulate proceedings.

8. Under the Rules, the body set up under s21(3) of the Ordinance is called a Preliminary Committee. Part II of the Disciplinary Rules regulates the conduct of the Preliminary Committee. Rule 15(iii) states:

"15. In considering any complaint the Preliminary Committee shall proceed as follows:

(i) ....

(ii) ....

(iii) Where the Preliminary Committee determines that a complaint, if proved, would amount to a disciplinary offence under Section 21 of the Ordinance, it shall refer the complaint to the Board but not otherwise. The Preliminary Committee shall also draft the charges and shall forward these to the Board at the same time...."

9. Thus, it can be seen that an essential step in the disciplinary process is the formulation of the charge: This means, by its very nature, a charge with sufficient particulars to enable the registered architect to know the case he has to meet. No formality is required.

10. Part III of the Disciplinary Rules governs the conduct of the proceedings by the Inquiry Committee.

11. Rule 20 provides that within 14 days of the constitution of the Inquiry Committee, the Committee shall hold a meeting at which directions for the future conduct of the matter shall be given. The registered architect shall be entitled to be present at such meeting and to make submissions. Such directions may include:

"(i) ....

(ii) specifying a period of time within which the RA must submit any written defence, submissions or documents intended to be relied on;

(iii) specifying a period of time within which the RA shall be provided by the Registrar with copies of all documents to be referred to at the hearing of the matter or otherwise considered by the Inquiry Committee;

(iv) specifying a period of time within which the RA shall be informed of the names of all witnesses to be called at the hearing of the matter and within which the RA shall inform the Registrar of the names of all witnesses he proposes to call ...."

12. Rule 25 empowers the Inquiry Committee to amend any charge which needs amendment. Notice of any proposed amendment must be given to the registered architect by the Registrar.

13. At the conclusion of the proceedings, the Committee is required, among other things to:

(i) identify the offences found to have been committed and those charges found not proved;

(ii) give written findings of fact;

(iii) give written reasons for the determination.

14. Where an Inquiry Committee makes a finding that a disciplinary offence has been committed, the Registrar is required by s26(1) of the Ordinance to forward the decision and any order proposed to be made by the Inquiry Committee to the Board for review. The Board must then appoint three of its members to sit with the chairman as a Review Committee to review the decision of the Inquiry Committee. Under s26(5) of the Ordinance, the Inquiry Committee is required to comply with the directions and recommendations, if any, of the Review Committee.

The Court's approach

15. Before I proceed to consider the circumstances of this case, a point must be emphasised: Disciplinary proceedings against a registered architect under Part IV of the Ordinance take place within a professional context. An Inquiry Committee, composed of members of The Hong Kong Institute of Architects, is not a court of law. The Disciplinary Rules, made to regulate disciplinary proceedings, are not carved in tablets of stone. They are there to ensure efficiency and fairness in the conduct of proceedings. Rule 28(i) of the Rules leaves considerable scope for the exercise of discretion by the Committee in the conduct of its own proceedings. Rule 28(i) states:

"28(i) Subject to the Ordinance and to these Rules, the Inquiry Committee shall conduct the hearing in such manner as it considers most suitable for the clarification of the issues before it and generally for the just handling of the proceedings."

16. Rule 28(ii) goes on to say:

"(ii) The Inquiry Committee shall act fairly when conducting its investigations and receiving evidence but shall not otherwise be bound by any common law or statutory rule of evidence or procedure."

17. What it boils down to is this: The Court of Appeal, in entertaining an appeal under s29(1) of the Ordinance, must not be too rigid in its approach, and should be slow to criticise the manner in which the proceedings have been conducted: accepting that the exercise of discretion concerning procedural matters is generally best left to the judgment of the Inquiry Committee. Breach of the Disciplinary Rules does not necessarily mean that the proceedings have not been conducted fairly: though, where this happens, it will naturally cause this court to scrutinise the proceedings with even greater care. It is only where this court is satisfied that basic requirements of fairness have not been observed that it will interfere.

Background facts

18. The disciplinary proceedings against the appellant originated with a letter dated 24 April 1991 from the Television and Entertainment Licensing Authority (TELA). The letter, addressed to the Registrar of the Architects Registration Board, states:

"Dear Madam,

Complaint of misconduct or neglect in a
professional aspect against Mr. LEUNG Siu-kwong,
Authorised Person - Architect

I would like to lodge a complaint against Mr LEUNG Siu-kwong, Authorised Person - Architect, for misconduct or neglect in a professional aspect.

At present this Authority has been receiving quite a number of layout plans prepared and certified by Architect Mr. LEUNG Siu-kwong in support of applications related Amusement Game Centre Licences. Recently it is discovered from a sample checking that there are 20 layout-plans in which the dimensions of the amusement game machines and all the space in-between added together are larger than the dimension of that side of the premises shown on the plan. A summary of the case is outlined in the attached 'Brief Facts of Case concerning misconduct or neglect in a professional respect against Mr. LEUNG Siu-kwong, Authorised Person - Architect' for your reference please.

This Authority is rather strict in demanding compliance with the spacing requirements between amusement game machines as the number of machines that can be accommodated in a premises is determined by the spacing criteria. The layout plans in question have resulted or may result in more machines being approved than permitted under the existing spacing criteria.

This Authority considers that the preparation of layout plans is only a paper exercise. There is no reason for the sum of all the lengths of the machines and the space between machines in one side of the premises to be greater than the given length of that side on the layout plan, no matter how small the discrepancy is. The abundance of the faulty layout plans prepared and certified by this Architect caused me to believe that Mr. LEUNG is more concerned with the number of amusement game machines that can be accommodated in the premises than his professional responsibility. There appears to be a prima facie case that Mr LEUNG Siu-kwong has misconducted himself or neglected his duties in a professional respect, thereby contravening section 21 of the Architects Registration Ordinance 1990 (Ord. No. 21) of 1990).

I am now referring this case to you for your further investigation and appropriate action. As it is our intention not to accept plans certified by this Architect pending your investigation of the matter, I should be grateful if you would keep me informed of the outcome of your investigation.

Should you have any further enquiries, please do not hesitate to contact me at 574 1408.

 

Yours faithfully,

(LAU Koon-man)

for Commissioner for Television
and Entertainment Licensing"

19. Accompanying the letter of 24 April 1991 is a document headed "Brief Facts of Case concerning misconduct or neglect in a professional respect against Mr. LEUNG Siu-kwong, Authorised Person - Architect", a sample form for applying for an amusement game centre (AGC) licence and guidelines for the grant of AGC licences.

20. The guidelines indicate that whenever an applicant applies for an AGC licence, the application must be accompanied by copies of layout plans of the proposed premises certified by an authorised person showing four things:

(i) the actual scale, dimension and floor area of the premises;

(ii) the exact dimension and position of the machines and any fixtures (e.g. air-conditioning plant, cashier counters etc.) to be installed inside the premises;

(iii) the number and type of machines to be installed; and

(iv) the distance between two machines placed side-by-side and front-to-front.

21. In essence, what the complaint amounted to this was this:

(a) Recent checking by TELA disclosed that there were discrepancies in 20 layout plans certified by the appellant in support of applications for AGC licences.

(b) The discrepancies amounted to this. In 19 of the cases, the sizes of the machines shown in the layout plan and the dimensions of the space between the machines given in the plan when added together were greater than the length of the relevant side of the premises stated on the plan. That is to say, the "discrepancies in dimensions" amounted to internal contradictions in the layout plans.

(c) In another case (bearing the reference No. T-635 relating to the ground floor of 20 Shelter Street) the discrepancies, as complained of, were more complex: They centred on three different things: (i) the absence of two toilets from the plans certified for the purpose of renewal of the licence, as compared with the original layout plan; (ii) when the licensee was asked to resubmit a layout plan showing the actual condition of the centre, this third layout plan gave a different measurement for the width of the premises as compared with the width shown in the original plan: originally it was 4615.8mm, now it was 4720mm; (iii) additionally, the width in the third plan (4720mm) was smaller than the size of the machines and the spaces in-between when added together.

22. On 12 May 1992 TELA lodged a further complaint relating to 11 more cases where the machines and the spaces in between, when added up, were greater than the relevant side. In the summary accompanying the letter of 12 May 1992, the discrepancies in some cases were minute: for instance, in one case it amounted to no more than 20mm, over the wall-to-wall measurement of 15,600mm. In some other cases, it was considerable: for instance, 1,300mm over the wall-to-wall measurement of 26,100mm.

23. On 18 July 1992 yet another complaint was lodged relating to two further cases where, as the letter stated, "the nature of the inaccuracy in respect of the layout plans is different from those submitted ... previously."

The charge

24. It would appear that the Board took a considerable time to process the complaints because it was not until 25 June 1993 that the appellant was told that disciplinary proceedings were on foot. There was only one charge against him, worded as follows:

"Complaints were made by the Commissioner for Television and Entertainment Licensing on 24 April 91, 12 May 92 and 18 July 92 that a series of discrepancies with respect to dimensions shown on plans certified by you, a Registered Architect, had arisen and that this complaint, if proved, would amount to a disciplinary offence under Section 21(1)(a) of the Architects Registration Ordinance 1990. Accordingly, an Inquiry Committee has been formed and you are required to respond to these charges."

25. Accompanying the letter of 25 June 1993 was "a copy of the complaint": That is, the letter of 24 April 1991 and its enclosures, the letter of 12 May 1992 and letter of 18 July 1992, all from TELA.

Hearing of the charge

26. The first meeting of the Inquiry Committee was held on 9 July 1993. The chairman stated that the purpose of the meeting was to give directions for the future conduct of the hearing. The minutes of the meeting then record as follows:

"3. Mr Leung indicated that he had no questions relating to the disciplinary rules. He then informed the Committee that some staff members of the Television & Entertainment Licensing Authority (TELA) were arrested in March 1991 following an ICAC investigation concerning falsification of documents. During the period of investigation, a number of plans were taken from his office for examination. Under the circumstances, he therefore doubted the authenticity of his signature and dimensional details as shown in the plans submitted by TELA to HKIA as evidence.

4. The Chairman stressed that this meeting was not to deal with evidence and reminded Mr Leung to produce the necessary evidence to substantiate his defense before the hearing proper.

5. The Committee informed Mr Leung that representatives from TELA would be called during the course of hearing to ascertain the authenticity of the evidence as presented."

27. Pausing here, it is important to note the background giving rise to TELA's original complaints, in order to appreciate the full flavour of the appellant's case. Back in September 1990, three licensing officers of TELA, together with a number of other persons, were arrested for corruption offences. One of those arrested was Mr Wong Siu-tat, a draftsman employed by the appellant. The licensing officers of TELA pleaded guilty and Mr Wong Siu-tat was subsequently found guilty after trial. Those cases involved the falsification of applications for AGC licences and of the layout plans which accompanied them.

28. As a member of his own office staff was involved in those crimes, access to the appellant's office documents by the conspirators obviously could not be ruled out. The appellant's concern over the authenticity of his own signature and the "dimensional details as shown in the plans" was plainly not fanciful.

29. The Inquiry Committee, after noting Mr Leung's concern, proceeded to give directions in accordance with Rule 20 of the Disciplinary Rules as follows: By 13 August 1993, the appellant should submit his "written defence submission or documents that he intended to rely on" and to inform the Registrar of the names of his witnesses.

The second meeting of the Inquiry Committee

30. The second meeting was held on 31 August 1993.

31. It is worth emphasizing at this point that the appellant faced only one charge, namely, that "a series of discrepancies with respect to dimensions shown on plans certified by [him] had arisen": as particularised by the letters of 24 April 1991, 12 May 1992 and 18 July 1992 from TELA.

32. It is clear from the minutes of the second meeting that the complainant's tackle was then not in order.

33. Paragraphs 2 and 3 of the minutes read:

"2. Mr Lau, Senior Licensing Officer of TELA, on oath, stated that he was responsible for the overall management of the Licensing Section of the Department. He briefly explained the procedures of applying for an Amusement Game Centre Licence and the course of events leading to the discovery of 19 cases with miscalculations on dimensions of the layout plan in their random check, all prepared by Mr Leung Siu Kwong. The TELA therefore lodged its complaint with the Architects Registration Board as follows:

- on 24 April 91 with 20 cases with irregularities

- on 12 May 92 with 11 cases with irregularities

- on 18 July 92 with 2 cases with irregularities

3. The Inquiry Committee then requested Mr Lau to produce the originals of the complaint documents submitted to the Board on the 3 dates mentioned above for verification by Mr Leung Siu Kwong" (emphasis added).

34. Pausing here, it is difficult to see how, in fairness to the appellant, he could have been asked there and then, in the middle of the hearing, to "verify" the documents produced by Mr Lau, senior licensing officer of TELA.

35. Para 4 of the minutes states that the meeting proceeded to mark the "agreed documents" for use at the hearing with reservations noted on a number of documents. Looking at the list of "reservations" it is clear that many of the documents relied on by the complainant in substantiation of the charge were not in order. A sample from the minutes would suffice:

"a) Ref No T-3858 of ET7

It was noted that the document bore no signature of Mr Leung Siu Kwong, TELA then decided to drop its future reference to the captioned layout plan.

b) Ref No T-2192 of ET7

It was noted that the signature of Mr Leung as shown on TELA's original was a photocopy of Leung's signature only. Mr Lau therefore agreed not to present it as a case in question.

c) Ref No T-3133 of ET7

The case in question was currently under ICAC processing. Original copies of documents were therefore not available for verification ...."

36. The minutes then proceed to note:

"5. Having gone through the documents and reviewed the discrepancies as noted together with the fact that significant number of documents being held by ICAC, the Chairman asked on behalf of the Committee whether Mr Lau would wish to take further instruction from the Commissioner before proceeding further with the complaint.

6. Mr Lau said that he would consult the Commissioner of TELA for a decision and would revert within 2 weeks time."

Further progress of the case

37. Having regard to what subsequently happened in the disciplinary proceedings, it is necessary to look with care at what occurred between the second and third meeting of the Inquiry Committee. On 5 October 1993 the appellant wrote a letter to TELA which stated:

"5th October, 1993
Our ref.: CL/3820

Television and Entertainment
Licensing Authority,
9th Floor, 151 Gloucester Rd.,
Wanchai, Hong Kong.

Attn.: Mr. Lau Koon Man

Dear Sirs,

Re: Layout Plans for Amusement Game Centre

I was given to understand that the above matter is resumed on 11th October, 1993.

You will recall that the matter was adjourned last time, due to your default and negligence in providing all relevant papers and evidence, that much time and costs have become wasted. Furthermore, you will also recall that while you use the documents against me in the hearing, you have already discovered that there are suspicious circumstances in the files that suggests the same do not represent entirely genuine documents and/or a complete record.

As you have been put to notice, that your Department, which had been confirmed by ICAC officer in Court, is in possession of forged documents, files with replaced/removed records. You are further put to notice, which had been made known to you before the last hearing, that your complaints against me was based on forged and/or removed/replaced records/documents.

Despite you knowledge of the forged/replaced records, your continuous efforts to put complaints against me, basing on such questionable documents/records, is a willful default or negligence, or that there is admistrations malpractice.

Please be informed that I took the view that your complaints herein is totally unjustifiable and that you are required to cease any further attempts to waste both my time, and the Architects Registration Board's time.

Should you insist on such complaints, you are further put to notice:-

1. That you are required to prove each and every documents in your file used against me shall be authenticated that each of such documents are genuine and have never been altered, replaced, removed, forged, and that the documents in files represents complete records.

2. That you are required to have expert opinion to prove on every signatures, which you alleged to be mine.

Meanwhile, all my loss and damages in view of your unjustifiable complaints are reserved.

Yours faithfully,

 

CHRISTOPHER LEUNG

c.c.: Architects Registration Board"

38. On 11 November 1993 TELA wrote to the Registrar in response to the appellant's letter of 5 October 1993. This evoked the following response from the appellant by letter dated 19 November 1993.

"Television and Entertainment
Licensing Authority,
39/F, Revenue Tower,
No. 5 Gloucester Road,
Wanchai, Hong Kong.

 

Dear Sirs,

Re: Complain against Registered Architect - Mr. LEUNG Siu-kwong

I refer to your copy letter to me addressed to A.R.B. dated 11th November, 1993.

I find the contents of your letter totally amazing and evasive. I wish to put it strict, that you are required to show all documents you intended to use:-

(a) are complete files,

(b) have no replacement/falsification/alteration,

(c) are genuine documents,

(d) with all signatures in the documents being genuine.

We have been wasting a lot of time, from the very beginning until now, that you have been showing us files and documents, which on the face of it is incomplete and/or suspicious, in particular when your Mr. Lau Koon Man testify on the last occasion, he is also doubtful on the genuineness of the documents, which have resulted the adjournment.

We are sick and tired of your irresponsible manner, by putting in your claim based on incomplete or falsified documents.

I also write to put on record, that your irresponsible manner is in fact abusive and frivolous of all proceedings herein.

You have been put, and that you are aware of, the maximum of "He who alleges must prove.." it would therefore be essential that you have to prove all your documents are genuine before you can put on any complaints.

As you have been advised that you files have engaged in massive scale of falsification/alteration, and also bearing in mind, even your own staff, Mr. Lau Koon Man has difficulty to satisfy himself that the documents be produced are complete and/or genuine, I would therefore demand you, before any further complaints to be put that you must prove the documents first.

Bearing in mind the embarrassment, expenses and inconvenience caused to me due to your repeated ungrounded and frivolous complaints, I put on record that if you are not to drop you unreasonable complaints forthwith I shall instruct my legal adviser to proceed on with this matter and that costs will be dealt with against you accordingly.

Yours faithfully,

 

CHRISTOPHER LEUNG

c.c.: Architects Registration Board"

39. On 14 December 1993 TELA, in response to the appellant's letter of 19 November 1993, wrote to the Registrar to the effect that all material used in support of the complaint were "genuine office records". This was hardly addressing the appellant's concern: namely, whether the layout plans containing the alleged "discrepancies" might have been tampered with in some way and whether the signatures said to be that of the applicant were genuine. TELA's "genuine office records" could turn out to be false - particularly having regard to the criminal background, involving TELA licensing officers. On 23 December 1993 the appellant wrote again to the Registrar to this effect:

"It doesn't appear that TELA understand that they must produce complete, unaltered, un-falsified office record and also to prove that all the signatures are being authorised, merely to say that they are genuine office records is far not good enough. Furthermore, as I understand from the Court case that massive alteration and falsification of TELA files have been done, one can hardly accept or believe that they are genuine, unless and until they can prove that the same were never altered, falsified or complete."

40. Pausing here, it would seem that the appellant's position could not have been clearer: Having regard to the fact that the complainant had had a false start in the proceedings, and part of the written material put forward to substantiate the charge could not be relied upon, the appellant was insisting that the case against him be strictly proved.

41. In the light of this, the way the third meeting of the Inquiry Committee was conducted is unfortunate.

The Third Meeting of the Inquiry Committee

42. The third meeting took place on 4 March 1994. Para 1 of the minutes reads:

"1. The meeting proceeded to conduct the verification of documents presented by the ICAC and TELA as a continuation of the last hearing."

43. In this regard, it is relevant to recall what TELA in its letter of 11 November 1993 had prior to the third meeting said to the Registrar:

"Please be informed that all the layout plans connected with the complaints are kept in the office files of this Authority. If Mr S.K. Leung seeks to challenge the authenticity of his signature on any of the plans, we would invite the Board to give directions for the signature of Mr Leung on the relevant plan(s) to be examined by an expert. In this regard, I understand the Government Chemist is able to assist. We would also invite the Board to obtain indications from Mr Leung as to which plan(s) he seeks to challenge...."

44. In response to this, the appellant had repeatedly said that he challenged all the plans. The Registrar knew this.

45. In these circumstances, whilst it may have been justifiable for the Inquiry Committee to attempt to use the third meeting to narrow the area of dispute, fairness required that the Committee should proceed cautiously, in seeking the appellant's "agreement" with regard to the authenticity of documents.

46. Para 3 of the meeting records as follows:

"3. The meeting continued with the checking of the documents according to the Overall Summary of cases prepared by TELA. Mr Leung queried the authenticity of the layout plans even though the TELA had confirmed that all were genuine office records. The Chairman said that the meeting should proceed at this point with the verification of documents only so as to establish a set of agreed documents as a base to proceed with the hearing and the matter on authenticity should be dealt with later." (Emphasis added).

47. Pausing here, it seems clear that the chairman, quite rightly, was not seeking to pin down the appellant there and then to a formal agreement: The matter of authenticity was to be dealt with later.

48. The meeting appears to have then proceeded with the "verification" exercise. At that stage, of the original 33 cases, 3 had been withdrawn by TELA. In relation to the remaining 30 cases doubts were cast on the signatures and chops of some of them; but in relation to three cases the minutes note the appellant as indicating that on examining the original documents his signature "appeared" authentic.

49. This process must have taken a long time because, before it was completed, the chairman intervened and proposed that the "verification" of the rest of the documents should proceed as a separate exercise with Mr Tse of TELA and the "agreed outcome should then be reported back to the Inquiry Committee as soon as practicable".

50. It would seem that any semblance of conducting a hearing on the charge as laid before the Committee disintegrated at this point. The complainant had by no means concluded its case; yet the appellant was "requested to brief the meeting on his normal office procedures in processing applications for Amusement Game Centre Licences on behalf of his clients". He was further asked whether he had instructed his staff to check whether the building was a legal structure and was structurally sound with suitable means of fire escape: matters which went far beyond the scope of the charge.

51. The meeting concluded as follows:

"10. The meeting agreed to adjourn the hearing until Mr Leung had completed checking the TELA record. However, Mr Leung said that he would first consult with his lawyer on some fundamental points before going further. Mr Leung was then requested to advise the Registrar on the time he would need to carry out the consultation so that the date of the next meeting could be scheduled."

Solicitors came on the scene

52. It would appear that, upon the conclusion of the third meeting, the appellant (not surprisingly) consulted solicitors. Under cover of a letter dated 6 April 1994 Messrs Alexander Tsang & Co., on the appellant's behalf, made a "submission for no case to answer", in the course of which, with reference to the ICAC investigations, they said:

" After months of investigation, massive operations of investigations and arrests have been conducted of which, senior officers of TELA have been charged and convicted.

Amongst these non-Tela officers accused, Mr Leung's ex-employee, Mr Wong Siu Tat was charged and convicted as middle man between AGC operators and Tela Officers.

During the trial of Mr Wong Siu Tat, it has been [revealed] ... to the court that the extent of unlawful acts were massive and they even go on to falsifying [the Authorised Person's] signature. The Tela records therefore at the material time were massively replaced, altered, removed, falsified or otherwise illegally intermeddled ....

It further goes on to suggest that in order to obtain benefits, Tela officers shall 'create' records, e.g. if someone makes application for AGC licence for a particular building ... they will fill in another application under [false] name beforehand so that they may 'sell space' to AGC operations.

During the hearing of Wong Siu Tat's case, it has been [revealed] that at the material time Tela department is a mess. One can therefore hardly rely on any record in the Department as 'complete' or 'genuine'."

53. In these circumstances, no steps were made to arrange a separate meeting with Mr Tse of TELA to "continue the verification" of the documents.

The Fourth Meeting of the Inquiry Committee

54. As is plain from what had transpired before, the cardinal issue before the Committee, left unresolved, was the extent to which the Committee could fairly rely upon the documents produced by the complainant. If the members of the Inquiry had themselves examined those documents and, from their own examination, had satisfied themselves that every signature was authentic and no tampering had taken place with regard to any of the layout plans, this is not apparent from the minutes produced. The Committee appears to have proceeded upon a presumption of regularity - in circumstances where, at least in some cases, there were real grounds for thinking that irregularity had occurred.

55. It appears that at the fourth meeting Mr Tse, the TELA representative and Mr Lau, an ex-TELA officer, both testified. They were plainly not testifying as experts on suspect documents. The minutes read:

"6. Mr Leung then asked confirmation from Mr Tse that all the documents relating to the 33 cases presented were genuine without falsification. In response, Mr Tse said that apart from the 3 withdrawn cases ... the remaining 30 cases were 'untouched' and genuine according to office records. Mr Lau also confirmed the same."

56. It is clear from this that neither Mr Tse nor Mr Lau were taking personal responsibility for the authenticity of the documents: They were merely saying that they were untouched and genuine according to office records.

57. It would appear from the minutes that, at some stage during the meeting, the focus changed from the question of authenticity of the documents produced by the complainant to the way in which the appellant managed his office: a matter which plainly was not within the scope of the charge. Para 8 of the minutes read:

"8. TELA was next invited to make its submission in response to that from Mr Leung. Mr S H Kwok reiterated that as far as plans submitted relating to the 30 cases were concerned, TELA did confirm that all were genuine office records and had been scrutinised by ICAC. In approving application for amusement game centre licence, TELA had been relying on the expertise of Authorised Persons in producing accurate building plans. There might be possibilities, however, that some documents had been subject to falsification by staff of Leung's office. But as a professional architect, it should be his duty to oversee plans so produced by his firm were reliable and accurate. Mr Kwok further added that amongst the many cases examined during the last meeting, Mr Leung had at least found cases Nos 1, 2 and 33 genuine. The Committee was therefore requested to note this against his earlier assertion that all the cases in the additional bundle were not from his office and to consider their complaint in the light of the evidence submitted."

58. The fact that the Inquiry Committee was reluctant to deal with the appellant's concern is apparent from para 9 of the minutes which read:

"9. In response to an enquiry put forward by Mr Leung as to whether photocopy was acceptable to the Committee for consideration, the Chairman stressed that according to the disciplinary rules, the Committee in conducting its proceedings and receiving evidence shall not be bound by any common law or statutory rule of evidence or procedure."

The determination

59. The fourth meeting was the final hearing of the proceedings against the appellant. As Mr Benjamin Chain, counsel for the appellant rightly remarks, it is difficult to determine from the minutes whether the Committee ever went beyond the stage of preparatory hearings. The alleged "series of discrepancies with respect to dimensions shown on plans" allegedly certified by the appellant were simply not addressed. Nevertheless, the Committee proceeded on 30 August 1994 to a determination.

60. Despite the requirement of rule 30(ii) of the Disciplinary Rules, there were no findings of fact in the written determination. The first 8 pages of the written document simply repeated the charge (such as it was) and reiterated the contents of the minutes of the four meetings. The concluding paragraph of the written document reads:

"7.0 Determination

In consequence of the above, the Inquiry Committee determined that a disciplinary offence has been committed by Mr Leung Siu Kwong within the meaning of Section 21(1) of the Ordinance.

7.1 The reasons for this determination are:-

i) The Inquiry Committee is satisfied that a series of discrepancies with respect to dimensions shown on plans certified by Mr Leung Siu Kwong had occurred as indicated by the Television and Entertainment Licensing Authority.

ii) The Inquiry Committee is satisfied that the misconduct by Mr Leung Siu Kwong, the subject matter of TELA's complaint, is misconduct amounted to misconduct in a professional respect in that

a) Mr Leung has failed to show that he had kept proper records of his submission to TELA

b) Mr Leung has failed to comply as an Authorised Person with all requirements noted in TELA's Application Form.

c) Mr Leung has failed to supervise activities within his office consistent with the requirements of TELA and that of a professional office.

iii) The Inquiry Committee is satisfied that Mr Leung has not avail himself all the opportunities offered to substantiate his earlier allegation that all the documents produced by TELA for this enquiry are not genuine as issued by his office.

iv) The Inquiry Committee is satisfied that Mr Leung has failed to fulfil satisfactorily the professional duties and obligations to TELA and his clients in connection with this licensing procedures expected of an professional architect."

61. The Committee found the appellant guilty on all 30 cases.

62. The finding of professional misconduct in para 7.1(ii) is astonishing. The Committee proceeded to find the appellant guilty of misconduct for : (a) failing to "show that he had kept proper records", (b) failing to comply as an Authorised Person with all requirements noted in TELA's application form and (c) failing to supervise activities within his office "consistent with the requirements of TELA and that of a professional office", when he had not been charged with any of these matters. As to para 7.1(iii), the appellant was, in effect, being condemned for his lack of "co-operation" with the Committee; and the finding of guilt in para 7.1(iv) is an echo of the conclusions in para 7.1(ii). The appellant was given no opportunity whatever to meet any of those matters.

63. Following a letter of protest by the appellant, the Board forwarded to the appellant a copy of the Committee's decision, to the effect that his name should be removed from the Register for six months, suspended for two years.

64. By letter dated 30 September 1994 Messrs Alexander Tsang and Co. wrote to the Board asking for (among other things) the Committee's findings of fact. In response, the Board sent to the appellant the Committee's purported findings of fact: These were no more than a reiteration of the minutes of the four meetings. It is not possible to extract a single finding of fact made by the Committee from those minutes.

The Review Committee

65. Pursuant to s26(1) of the Ordinance, the Registrar forwarded the Inquiry Committee's decision and the proposed order to the Board for review. Not surprisingly, the Review Committee, on 3 March 1995, resolved to remit the Inquiry Committee's decision and its proposed order back to the Committee for reconsideration. Among the reasons given by the Review Committee for this decision is the fact that the appellant had never been charged with misconduct on account of (a) failing "to show that he had kept proper records; (b) failing to comply as a Authorised Person with requirements in TELA's application forms and (c) failing to supervise activities with his office.

The final determination

66. With such fundamental defects in the proceedings and in its determination up to this point having been revealed, one would have thought that the Inquiry Committee would have paused and addressed its mind to the allegations as charged: That is, the "series of discrepancies with respect to dimensions shown on plans" certified by the appellant: What plans, what dimensions, what discrepancies? Nothing suggests that these questions were directly addressed.

67. After reconsideration as required by the Review Committee, the Inquiry Committee concluded that, of the original 30 cases, no disciplinary offences were shown to have been committed in respect of 27. The Committee found that disciplinary offences were proved in relation to only 3 of those cases: Case No. 1 (Ref. No. T-635), Case No. 2 (Ref. No. T-2304) and Case No. 33 (Ref. No. T-4180).

68. Despite the fact that only three out of the 30 cases were finally proved, the Committee confirmed the original order of removal from the register for a period of six months, suspended for two years. The gravity of the offence, in the eyes of the Committee, remained the same. It is this Order, dated 18 September 1995, which comes to this court on appeal.

69. The written determination of 18 September 1995 is in form similar to that of 30 August 1994. There are no findings of fact. Under the heading "The Facts" one simply finds a reiteration of the minutes of the various meeting of the Inquiry Committee. As to the reasons for the determination, these are to be extracted from the part of the document headed "Analysis" which states:

"Analysis

The committee noted from TELA's submission (made by Mr S H Kwok, legal counsel representing TELA) that as far as plans submitted relating to the 30 cases were concerned, TELA did confirm that all were genuine office records and had been scrutinised by ICAC and that in approving applications for amusement game centre licences, TELA had been relying on the expertise of Authorised Persons in producing accurate building plans. The Committee further noted that there might be possibilities for falsification of the documents but as professional architect it should be Mr Leung's duty to oversee plan so produced by his office be reliable and accurate.

During the whole course of the inquiry the Committee had found Mr Leung to be most uncooperative even though he had been given several opportunities to defend his case but he had somehow been evasive and avoided confirmation whether the relevant documents were genuine and had been issued by his office. However Mr Leung did in the end confirm some of his genuine signatures as noted under item 4.5 above.

The Registered Architect, on 12th September 1994, submitted a letter by hand to the Inquiry Committee. Interalia, the R.A. expressed his 'extreme disappointment' and was 'aggrieved' by the Determination. The R.A. believed that '... any reasonable man shall at least cast serious doubt on the documents so presented and that the onus of proof shall accordingly shift to the complaint'. The R.A. also wrote 'I therefore write to confirm if you are prepared to withhold all action, until the inspection and report duly prepared by Mr Leung, which I strongly believe that after the said inspection, you may well have reverse your findings.' The inquiry Committee, in consequence, is satisfied that this letter was not written as a plea in mitigation allowed for under Disciplinary Rule 3.1(ii).

Having examined all documents submitted and heard the views of the complainant and Mr Leung Siu Kwong, the finding of the Inquiry Committee is that:

The Inquiry Committee is satisfied that Mr Leung has not avail himself all the opportunities offered to substantiate his earlier allegation that all the documents produced by TELA for this enquiry are not genuine as issued by his office.

The Inquiry Committee is satisfied that Mr Leung has failed to fulfil satisfactorily the professional duties and obligations to TELA and his clients in connection with this licensing procedures expected of an professional architect."

70. As can be seen from the "Analysis" the Committee was no longer concerned with the alleged series of discrepancies in the plans certified by the appellant. That was the offence with which he was charged. Despite the earlier admonitions of the Review Committee, the Inquiry Committee's focus nevertheless shifted from the charge as formulated to the appellant's behaviour generally: As an office manager and as regards the manner in which he conducted his case.

71. The written determination is wholly silent as to the only matter with which the appellant was charged and convicted: namely, in what regard there were discrepancies in dimensions in the plans certified by him, in each of the three cases on which he was found guilty. It is not surprising in these circumstances that there are no findings of fact relating to this issue.

The charge

72. It would be convenient at this point to revert to the charge brought against the appellant.

73. At the hearing, we invited counsel for the Inquiry Committee to formulate, in relation to the only remaining three cases, the precise "discrepancies with respect to dimensions shown on plans" certified by the appellant which justified the finding of guilt. Counsel was unable to do so. This is not surprising.

74. In relation to Case No. 33 (Ref No. T-4180) the "discrepancy" - if it be such - did not relate to the dimensions shown on the layout plans, but to the configuration of the premises concerned: shop No. 50 on the ground floor of 143 Kweilin Street, Shamshuipo. Two certified plans were produced. In the first, shop No. 50 is rectangular; in the second plan shop No. 50 is L-shaped. It appears that, at some stage, the premises were enlarged to incorporate an adjoining space. If there was a misdescription, it related to the L-shaped premises: that is, whether it was properly described as shop No. 50, the licensee having at some stage incorporated an adjoining space, and enlarged shop No. 50. It is difficult to see how - assuming the signature on the plans to be genuine, and the plans not tampered with - the appellant could be guilty as charged.

75. In relation to case No. 1 (Ref. No. T-635) the "summary of facts" produced by way of particulars of the charge seems to raise three separate matters of complaint, one of which - the removal of two toilets - falls wholly outside the charge.

76. The remaining case, case No. 2 (Ref. No. T-2304) is one of the original 19 cases referred to the Board by TELA. However, the discrepancy in this case is minute: less than 2%. If the Committee had properly directed its mind to this case as charged, the Committee could well have reached the conclusion that the discrepancy is insignificant and called for no finding of guilt.

Conclusion

77. There are, in my judgment, three fundamental grounds for impeaching the Committee's determination: (i) procedural unfairness; (ii) there was no sufficient proof that the documents in cases No. 1, 2 and 33 were genuine and untouched; (iii) the charge was not sufficiently clear. These three points, to an extent, merge.

78. From the history of the proceedings outlined above, it is beyond doubt that there has been no due inquiry by the Committee into the matter with which the appellant was charged.

79. Whilst, in ordinary circumstances, an Inquiry Committee may be entitled to take a robust view and rely upon the apparent regularity of original documents, this was not an acceptable approach in the circumstances of this case. The Committee's own finding, in dismissing 27 out of the 30 cases, is tacit acceptance of the appellant's case that, overall, there were grave doubts concerning the authenticity of the documents: namely, whether they might have been tampered with, whether signatures have been forged etc. In these circumstances, to have required the appellant to examine the documents at the actual hearing, and to have then taken the appellant's statement that a particular signature "appeared genuine" as a binding admission was grossly unfair. In normal circumstances it would be proper to say, in effect, to a registered architect: "You must have tracings in your office of your own drawings. You are in the best position to tell if the drawings now produced in evidence have been altered. They look untouched. If you assert otherwise, prove it". But this was not the course taken by the Committee. The Committee had, at the third meeting, expressly left "the matter of authenticity [to] be dealt with later": It was never in fact later addressed, yet the finding of guilt followed as if it had. The Committee did not, apparently, take upon itself the responsibility of scrutinizing the plans and satisfying itself that the documents were genuine and "untouched": It simply relied upon the appellant's admission that the signatures on the documents in Case No. 1, 2 and 33 "appeared authentic" to convict, and dismissed the rest of the 30 cases. The Committee could not have relied upon Mr Tse and Mr Lau's assertion that all the documents were genuine and untouched "according to office records": for, if it had done so, it would presumably have convicted on the remaining 27 cases as well.

80. In these circumstances, quite apart from the procedural unfairness inherent in requiring the appellant to "verify" the signatures in the presence of the Committee, I am of the view that the so-called "admission" itself, in relation to Cases No. 1, 2 and 33, is not a sufficient basis for finding that the plans in those 3 cases were untouched. On this ground alone, I would have allowed the appeal.

81. As regards the formulation of the charge, the Committee has powers to amend the charge or to cause it to be amended by the complainant. When 27 out of the 30 cases have been dismissed and the matter boiled down to the examination of three cases only, the Committee could and should have asked for the charge to be particularised with reference to those three cases. Their minds would then have been focused upon the question of discrepancies - and the Committee would have seen that, by that stage, there was virtually no case for it to consider.

82. In my judgment, there has been such irregularities in the proceedings and breaches in the basic rules of fairness that this appeal must be allowed with costs and the decision of the Inquiry Committee dated 18 September 1995 must be quashed.

83. I would so order.

Godfrey, J.A.:

84. I agree that, for the reasons given by Litton V-P, this appeal must be allowed, and the order dated 18 September 1995 set aside.

Ching, J.A.:

85. I am in agreement with the judgment of Litton V-P, and the Order he proposes.