DR NKASU MICHAEL MMAAMA v. ENGINEERS REGISTRATION BOARD

HCAL 67/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 67 OF 2006

---------------------

----------------------

-------------------------

J U D G M E N T

-------------------------

Introduction

1. This application for judicial review looks to the lawfulness of certain disciplinary proceedings pursuant to the Engineers Registration Ordinance, Cap.409 (‘the Ordinance’).

2. On 5 January 2001, the applicant, a registered professional engineer, examined and tested a crane to ensure that it was in safe working order.  The crane was situated on a construction site.  The examination and testing of the crane was carried out pursuant to the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) Regulations, Cap.59 (‘the Regulations’).

3. In terms of the Regulations, the responsibility for ensuring the regular testing of lifting machinery (such as a crane) is placed on the owner of that machinery.  The owner must ensure that it is tested by a ‘competent examiner’ in the manner prescribed by the Regulations.  The applicant was a duly qualified competent examiner.

4. Having examined and tested the crane, the applicant gave to the owner a certificate in the approved form stating that the crane was in safe working order.

5. In March 2005, the applicant was informed by the Registrar of the Engineers Registration Board (‘the Board’) that two complaints had been received from the Labour Department concerning the manner in which he had examined and tested the crane.

6. The second complaint was later found to be of no substance.  As for the first complaint, however, it alleged two acts of professional misconduct or neglect on the part of the applicant in respect of which, in terms of s.20(1)(a) of the Ordinance, he was liable to be disciplined.  The first was that he had not tested the crane in the manner that he should have done; that is, as prescribed by the Regulations.  The second was that the manner of testing in any event had been unsafe.  The complaint, as addressed to the applicant, was worded as follows; namely, that during the testing of the crane —

“… you did not follow the Regulations in that instead of conducting the test in accordance with the statutory requirement of ‘hoisted and swung’ a suspended load, you had the crane hooked onto an embedded sheet pile and moved its turntable.  The method so adopted also constituted an unsafe act that might affect the stability and construction of the crane, and the sheet piling foundation and hence jeopardize the operator and others in the vicinity.”

7. It was the decision of the Board, pursuant to its power under s.21(1) of the Ordinance, to refer the two complaints made by the Labour Department to an inquiry committee for determination.  The section reads :

“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 Institution in the same or a similar discipline as the registered professional engineer in respect of whom the complaint is made, to determine whether or not he has committed a disciplinary offence.”

8. A member of ‘the Institution’ means a member of the Hong Kong Institution of Engineers established under the Hong Kong Institution of Engineers Ordinance, Cap.1105.  It is important to note that a member of the Institution need not be a registered professional engineer.

9. In August 2005, a hearing was held before the inquiry committee.  The applicant was given due notice of the hearing, he attended and gave evidence.

10. While the inquiry committee dismissed the second complaint, it concluded that the first complaint had been proved.  The committee was of the view that the appropriate penalty should be the removal of the applicant’s name from the register of registered professional engineers for a period of six months.

11. In terms of s.21(2) of the Ordinance, the Board has the power to make rules of procedure to govern the conduct of disciplinary proceedings.  Those rules direct that at the end of an inquiry committee’s deliberations the registered professional engineer whose conduct has been investigated is informed of the committee’s decision as to culpability and, having been given the opportunity to mitigate, is then informed of the committee’s proposed penalty.  No reasons, however, need be given to him at that time.  Those reasons are put into the committee’s formal judgment which is prepared after the hearing.  In this regard, para.8.1 of the Rules direct that —

“Immediately following the hearing, or as soon afterwards as is practicable, the inquiry committee shall record the facts and the reasons for the decision in writing, if necessary with clerical assistance from the Registrar and the Legal Adviser.  Although subject to review this should be prepared as a formal document, signed and dated by all members of the inquiry committee.”

12. As para.8.1 indicates, once the inquiry committee had come to a finding that a disciplinary offence had been committed the matter had to be referred back to the Board for a process of review.  In this regard, s.25 of the Ordinance directs that —

“      (1)   When an inquiry committee completes its hearing in respect of a disciplinary offence and makes a finding that a disciplinary offence has been committed, the Registrar shall forthwith forward the inquiry committee’s decision and details of any order proposed to be made by the inquiry committee … to the Board for review.

       (2)   The Board shall appoint 3 of its members, one of whom shall be qualified in the discipline, or, in the opinion of the Board, a discipline similar to the discipline, of the registered professional engineer concerned to sit with the Chairman as a review committee to review the decision of the inquiry committee.”

13. In conducting its review, the review committee had before it the record of proceedings before the inquiry committee and what I have described as the inquiry committee’s formal judgment.

14. The review committee did not call for representations from the inquiry committee.  Indeed, the rules of procedure prohibited any such dialogue.  Equally, the committee did not call for representations, oral or written, from the applicant.

15. It is apparent that the review committee – each of its members being a registered professional engineer – conducted what may best be described as an internal review, a review that had regard solely to the documentary material generated by and before the inquiry committee.

16. The review resulted in the inquiry committee’s findings as to both culpability and penalty being confirmed unaltered.

17. By letter dated 11 November 2005, the Registrar of the Board informed the applicant that, in accordance with the procedures laid down in the Ordinance, the first complaint had been found proved and that his name was to be removed from the register for a period of six months.

18. The applicant has challenged the lawfulness of the finding made against him and the award of the penalty.  He has done so on two grounds.

19. First, that the inquiry committee and the review committee of the Board, acting together as administrative disciplinary tribunals, had acted ultra vires; that is, outside of their statutory powers.  They had done so because the subject of their inquiry, while it purported to be an inquiry into professional misconduct or neglect, was in pith and substance an inquiry into whether the applicant had committed a criminal offence.  Only the criminal courts, however, have jurisdiction to determine whether a criminal offence is proved against a person.  No such power is vested in any administrative tribunal constituted under the Ordinance.

20. Second, that, at the review stage of proceedings, procedures were adopted that were materially unfair to the applicant.  They were unfair in that :

(a) The applicant was not informed of the constitution of the review committee.  He did not know therefore who was reviewing his case and whether they may properly be disqualified.

(b) The applicant was not given a copy of the inquiry committee’s judgment and was therefore denied the right to have any understanding of the critical document being reviewed.

(c) The applicant was denied the ability to make representations to the review committee, representations which, if allowed, may have resulted in the committee coming to a different determination.

A more detailed consideration of the background

21. The Regulations lay down a regime for the regular examination and testing of all types of lifting machinery.  As to the manner in which cranes are examined and tested, the Regulations direct that this must be done in accordance with the First Schedule.  Thus, in terms of reg.5(3) of the Regulations, the owner of a crane is prohibited from using that crane unless within a specified period —

“… it has been tested and thoroughly examined by a competent examiner in the manner prescribed in the First Schedule, and a certificate in the approved form in which the competent examiner has made a statement to the effect that it is in safe working order has been obtained.”  [my emphasis]

22. On 5 January 2001, when the applicant, as a competent examiner, carried out an examination of the crane and tested it to ensure that it could operate safely, he was obliged by the Regulations to do so ‘in the manner prescribed in the First Schedule’ and to submit a certificate to the owner in the approved form stating whether or not, as it stood, the crane was in safe working order.

23. Para.2(1) of the First Schedule directs that a crane shall be tested by hoisting a ‘proof load’ and swinging it from side to side ‘as far as is practicable’.  The ‘proof load’ must exceed the ‘safe working load’ by certain specified amounts.  In short, the crane is submitted to a form of stress test.  As to the weight of the proof load, para.2(1) directs that it shall exceed the safe working load as follows —

“(a)  if the safe working load is less than 20 tonnes, the proof load shall exceed the safe working load by at least 25 per cent.

(b)  if the safe working load is 20 tonnes but not more than 50 tonnes, the proof load shall exceed the safe working load by at least 5 tonnes.

(c)  if the safe working load is more than 50 tonnes, the proof load shall exceed the safe working load by at least 10 per cent.”

24. As to the manner in which the test is to be carried out, para.2(2) and (3) direct that —

“ (2)   The proof load shall be hoisted and then swung as far as is practicable first in one direction and then in the other.

   (3)   Where a crane with a jib which has a variable vertical operating radius is to be tested, the test shall be carried out by applying a proof load in accordance with sub-paragraph (1) at both the maximum radius and the minimum radius of the jib.”

25. When he completed the approved certificate, the applicant certified that he had ‘tested and thoroughly examined’ the crane, ‘in accordance with the First Schedule’ and that the particulars in the certificate were correct.

26. In June 2001, the applicant was charged with the commission of a criminal offence contrary to r.21(2) of the Regulations :

“Any … competent examiner who delivers to an owner a certificate or makes a report which is to his knowledge false as to a material particular shall be guilty of an offence and shall be liable on conviction to a fine of $200,000 and to imprisonment for 12 months.”

27. For the offence to be proved therefore it had to be shown that the applicant knew that the certificate which he delivered to the owner of the crane was false in a material particular.

28. The applicant’s trial took place in the magistrates court in October 2001.  It was the prosecution case that most of the tests certified by the applicant to have been conducted were, in fact, not carried out and that accordingly the purported results of those tests had to be false.  It was an allegation of some gravity.  As Carlson DJ expressed it in his judgment of 21 August 2002 after the matter had come before him on appeal :

“… it raised a very serious allegation against the appellant : that he had compromised the safety of this equipment by purporting to have carried out the whole range of tests required by the regulations when in fact he had only performed a small part of the test.”

29. The applicant testified in his defence that he had carried out all the tests required of him.  The results recorded on the face of the certificate, he said, were in his opinion accurate results.  The tests may not have accorded with the stated requirements of the First Schedule, he said, but nevertheless, having regard to the difficult physical circumstances presented to him at the construction site, he believed that they met the requirements of the First Schedule.  In giving his evidence, the applicant described in some detail the nature of the tests he had conducted.

30. The magistrate found the applicant not guilty.  He had no reason, he said, to reject the applicant’s testimony that all of the results recorded on the certificate were drawn from tests carried out by him and that he had an honest belief in the accuracy of those results.

31. The magistrate, however, was asked to review his decision.  This was founded on the assertion that, even if the applicant had carried out the series of tests described by him in his evidence, those tests, to the applicant’s knowledge, had not complied with the mandatory requirements of the First Schedule.  The certificate, to his knowledge, had therefore been false in a material particular.

32. On this ‘alternative basis’, as it was described on appeal, the applicant was convicted of the charge by the magistrate.

33. The applicant successfully appealed his conviction.  In his judgment, Carlson DJ found that the applicant had been denied a fair trial.  He expressed his finding in the following way :

“The magistrate, at trial, was never invited to deal with the case on that alternative basis.  If that alternative basis had been known to the appellant and his solicitor before his trial started, he may well have conducted his defence differently; called additional evidence, cross-examined prosecution witnesses differently and so forth.  This is the essence of our adversarial system, and now, after the horse had bolted as it were, the prosecution has been allowed to re-examine its position and have a second go on a basis that had not been originally relied on.  I do not believe that can be right.  Its effect, albeit unintended by prosecution and magistrate, has been that the defendant has not had a fair trial.”

34. It was not until March 2005, some two and a half years later, that the Labour Department made its complaints of professional misconduct or neglect to the Board.

The first challenge : the ultra vires issue

35. On behalf of the applicant, Mr Pun contended that the inquiry committee and the review committee, acting together as administrative disciplinary tribunals, had no power to determine whether the first complaint made by the Labour Department was proved.  It had no power to do so because what was determined was in pith and substance the same conduct that had formed the criminal charge against the applicant.  The disciplinary proceedings were an attempt to determine the criminal charge a second time, this time in the guise of professional misconduct.

36. In support of this submission, Mr Pun relied on a series of Canadian cases to the effect that, having regard to the architecture of the Canadian constitution, it was not within the powers of administrative disciplinary tribunals to investigate the alleged commission of specific criminal offences as this would circumvent the criminal procedure process.  As it was expressed in Stromberg v. Law Society of Saskatchewan 132 DLR (4^th) 470 :

“A provincial inquiry will not be ultra vires simply because it incidentally scrutinizes conduct or activities that may constitute a crime.  But if its true focus is to determine whether or not a specific crime has been committed by a specific individual, then it has strayed too far and the overlap constitutes an intrusion into federal jurisdiction.  Such an inquiry is ultra vires.”

37. The obligation rests on this court, said Mr Pun, to identify the true nature (i.e. the pith and substance) of the disciplinary inquiry and if it amounted to a substitute criminal investigation then the inquiry committee and the review committee had acted outside of their statutory powers.

38. But, as Mr Pun accepted, any such identification exercise involves the consideration of a broad range of matters.  The mere fact, for example, that there had been earlier criminal proceedings would not – of itself – prohibit a later disciplinary inquiry into allegations of professional misconduct arising out of the same factual circumstances.  As the court put it in Stromberg :

“… the manner in which the formal [disciplinary] complaint is laid and what it directly or indirectly alleges, determines to a large extent the scope and focus of the proceedings.  It is the formal complaint that sets out what the hearing committee must consider and determine.

       It is only when the professional misconduct alleged in a complaint might also constitute a criminal offence, that the constitutional issue becomes a potential concern.  By way of illustration, a charge of failing to maintain proper trust records may involve conduct that constitutes theft.  But if the complaint does not allege that the conduct is theft and focuses on the disciplinary offence of failing to keep trust records, then the hearing committee will not be directly or indirectly determining if the misconduct constitutes the crime of theft.”  [my emphasis]

39. On behalf of the respondent, it was submitted by Mr Ng SC that the Canadian cases relied upon by Mr Pun do not reflect the law of Hong Kong and must be read within the context of what I have described as the architecture of the Canadian constitution.  In my judgment, however, there was no need to determine the issue.

40. I say that because I was satisfied that the applicant’s challenge was from the outset factually misconceived.  It was plain, in my view, that, neither directly nor indirectly, did the inquiry committee or the review committee in any way purport to investigate criminal conduct on the part of the applicant.

41. In the criminal courts, the applicant had been charged with delivering a certificate to the owner of the crane which he knew to be false in a material particular.  In the criminal courts therefore the issue was the falsity of the certificate and the applicant’s knowledge of that falsity.  Before the disciplinary tribunals, however, the complaint was not in any way focused on whether the applicant had knowingly delivered a false certificate.  The complaint was rather to the following effect; namely, that, even if the applicant believed that the certificate he delivered was a true certificate —

(i) the manner in which he had tested the crane had been unprofessional because he had failed to do so in accordance with his obligations under the First Schedule, and

(ii) the manner in which he conducted the test had been unprofessional because it had been dangerous.

42. The disciplinary inquiry was focused on whether or not, in conducting the test, the applicant had acted unprofessionally.  The nature and manner of the testing was therefore the issue not whether thereafter the applicant had knowingly delivered a false certificate to the owner of the crane.  In short, the purpose of the disciplinary proceedings was to determine whether the applicant had met the high standards of competence required of an honourable profession.  Nothing of criminal nature fell for determination within the limits of that inquiry.

The second challenge : the issue of procedural fairness

43. Mr Pun submitted that the procedures adopted at the review stage of the disciplinary proceedings were – for the reasons I have outlined in para.20 – unfair to the applicant.

44. Mr Pun founded his submissions on the speech of Lord Mustill in R. v. Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 :

“Fairness will very often require that the person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with the view to producing a favourable result; or after it is taken, with the view to procuring its modification; or both.  Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he has informed of the gist of the case which he has to answer.”

45. Cheung JA, in his judgment in Leung Fuk Wah Oil v. Commissioner of Police [2002] 3 HKLRD 653, at 659, observed that, in considering the requirements of fairness, it was not necessary to look beyond Lord Mustill’s words.

46. While Mr Ng, for the respondent, fully accepted the fundamental principle defined by Lord Mustill, it was his submission that what was or was not fair had always to be judged in context.  It was Mr Ng’s contention that, when the review stage of the proceedings was viewed in context, and when the nature of the review itself was understood, it was apparent that the disciplinary proceedings created by the Ordinance, and complemented by rules of procedure made under the authority of the Ordinance, adequately protected the interests of the applicant.

47. What had to be remembered, said Mr Ng, was that the legislature had laid out a framework of disciplinary proceedings suitable to a particular profession and the demands of fairness had to be judged in that context.  Fairness, he said, did not necessarily demand a plurality of representations and counter-representations.  Nor could fairness be judged as a theoretical absolute.  As a foundation upon which to base his submissions, Mr Ng relied upon the seminal statement of Lord Bridge in Lloyd v. McMahon [1987] AC 625 at 702 :

“… the so-called rules of natural justice are not engraved on tablets of stone.  To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and its statutory or other framework in which it operates.  In particular, it is well-established that when a statute has conferred on any body power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness.”

48. In law, of course, context is everything.  In the present case, to understand that context, the scheme of disciplinary proceedings created by the Ordinance must be considered.

49. What must first be understood is that not all complaints made to the Board are made the subject of formal disciplinary proceedings.  When a complaint is received, it is referred to two members of the Board – both registered professional engineers – who, in consultation with the Registrar of the Board, decide whether there is sufficient merit in the complaint for it to be taken further.  In this regard, s.20(3) of the Ordinance states :

“Where the Registrar [of the Board] receives a complaint concerning a disciplinary offence, the Registrar shall submit the facts to 2 members of the Board appointed by the Board for the purpose, and the members, in consultation with the Registrar, shall determine whether the complaint should be referred to the Board.”

50. As it was, both complaints made by the Labour Department were referred to the Board.  The Board then decided that the complaints should be referred to an inquiry committee to determine whether the applicant had or had not been guilty of professional misconduct or neglect.  In this regard, to cite it again, s.21(1) of the Ordinance reads :

“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 Institution in the same or a similar discipline as the registered professional engineer in respect of whom the complaint is made, to determine whether or not he has committed a disciplinary offence.”

51. The powers of an inquiry committee are extensive.  S.24(1) states that it has the power —

“(a)   to hear, receive and examine evidence on oath;

(b) to summon any person to attend the inquiry either as the person whose conduct is the subject of the inquiry or to give evidence or produce any document or other thing in his possession and to examine him as a witness or require him to produce any document or other thing in his possession, subject to all just exceptions;

(c) to admit or exclude the public or any member of the public from the inquiry;

(d) to admit or exclude the press from the inquiry;

(e) to award any person summoned to attend the inquiry as a witness such sum, to be paid from the funds of the Board, as in the opinion of the inquiry committee have been reasonably expended by him in connection with his attendance.”

52. A witness appearing before an inquiry committee – which would include the applicant in the present case – is entitled to the same protection that a witness receives in a court of the classic kind : see s.24(3) and (4).

53. It is to be noted that in the present case no complaint was made as to the fairness of the proceedings before the inquiry committee.

54. At the conclusion of proceedings before the inquiry committee, the findings of the committee were forwarded to the Board so that those findings could be reviewed.  In this regard, to cite them again, s.25(1) and (2) of the Ordinance state :

“      (1) When an inquiry committee completes its hearing in respect of a disciplinary offence and makes a finding that a disciplinary offence has been committed, the Registrar shall forthwith forward the inquiry committee's decision and details of any order proposed to be made by the inquiry committee under section 23 to the Board for review.

       (2) The Board shall appoint 3 of its members, one of whom shall be qualified in the discipline, or, in the opinion of the Board, a discipline similar to the discipline, of the registered professional engineer concerned to sit with the Chairman as a review committee to review the decision of the inquiry committee.”  [my emphasis]

55. On a reading of the Ordinance, it is plain, I think, that the statutory mandate of the review committee is not to conduct a re-hearing on the merits nor to act as a court of appeal.

56. For example, s.21(3) of the Ordinance directs that a registered professional engineer whose conduct is subject to scrutiny must be given 28 days notice of the hearing before an inquiry committee.  But no such provision is made in respect of the proceedings of the review committee.  More pertinent still is that s.21(4) of the Ordinance directs that the registered professional engineer be entitled to attend the hearing of the inquiry committee and hear all the evidence produced.  Again, however, no such provision is made in respect of the proceedings of the review committee.

57. It must also be remembered that the Ordinance makes specific provision for an appeal to the Court of appeal, that court being given broad powers.  S.28 of the Ordinance states (in part) :

“ (2) The Court of Appeal may affirm, reverse or vary the decision or order appealed against.

   (3) Where a person appeals against an order of an inquiry committee, the Court of Appeal shall consider the reasons of the inquiry committee and submissions upon the findings of fact and law of the inquiry committee made on behalf of the parties to the inquiry and may call for the original record of the evidence taken and any document put in evidence before the inquiry committee.

   (4) The Court of Appeal may, upon special grounds being shown, consider any additional evidence not adduced before the inquiry committee.”

58. If the Ordinance provides for a full hearing at first instance before an inquiry committee and for an appeal process to the Court of Appeal, what then is the function of the review committee?

59. The Ordinance directs that the review committee shall ‘review the decision of the inquiry committee’.  It is constituted therefore as a supervisory body, its jurisdiction being to consider; that is, to examine, the decision of the inquiry committee.

60. The Ordinance, in my view, does not give the power to the review committee to examine the decision with a view to forming its own view of the merits.  It is for the inquiry committee and not the review committee to evaluate the evidence and find the facts.

61. In my judgment, the purpose of the review procedure is to be understood in light of the fact that, while an inquiry committee does not have to be constituted entirely of registered professional engineers, the review committee must be so constituted; indeed, more than that, all the members of the review committee must be Board members.

62. The review procedure is therefore a safeguard procedure.  It is not a fresh hearing, it is not an appeal.  It is an examination of the decision of the inquiry committee – and no more than that – conducted by the peers of a registered professional engineer who, by reason of their knowledge and experience of the multi-faceted demands of the profession, are in a unique position to say whether that decision, in respect both of culpability and penalty, is a reasonable one.  By that I mean that the findings made by the inquiry committee are findings which, having directed themselves properly as to matters of material relevance, a reasonable body of persons knowledgeable in matters of the engineering profession could reach.

63. The Board’s rules of procedure give the following terms of reference to a review committee (para.9.6) :

“The review should be conducted to ensure that the inquiry committee’s decision is fair and consistent with precedent, and that the proposed orders are appropriate given the facts of the case.”

64. Para.9.6 goes on to the direct that the review “shall be conducted on a documents only basis.”

65. The notes to para.9.6 are instructive.  They read :

“(i)  … a primary purpose of the review committee is to ensure that each case is decided on the facts presented before the inquiry committee.  The review committee’s only function is to ensure that the decision made by the inquiry committee is one that a reasonable committee would make, that on the facts as found it is fair, just and satisfactory.

(ii) The review committee should also look carefully at the proposed orders made by the inquiry committee, with a view to ensuring that the action proposed is appropriate and can be fully justified, particularly when the livelihood of the [registered professional engineer] concerned may be affected.”

66. In my judgment, those guiding notes are entirely appropriate, encompassing the true function of the review committee as intended by the legislature.

67. As a supervisory body, the review committee is given certain powers.  These powers are set out in s.25(4) of the Ordinance which states that it may —

“ (a)  confirm the decision and any proposed order of the inquiry committee;

(b)  reverse a finding of guilt of the inquiry committee;

(c)  recommend that any proposed order made by the inquiry committee be varied; or

(d)  remit the decision or any proposed order of the inquiry committee to the inquiry committee with directions to reconsider the decision or proposed order or both.”

68. It is important to observe that the determinations of the review committee must be followed by the inquiry committee.  S.25(5) directs that —

“The inquiry committee shall comply with the directions and recommendation, if any, of the review committee.”

69. The review procedure, of course, could make provision for some form of a hearing, or for written submissions, without offending the terms of the Ordinance.  It may be argued that it would be fairer if this was done.  What must be remembered, however, is that the legislature has permitted the Board to make its own rules relating to the investigation of alleged disciplinary offences : s.21(2).  Provided, therefore, that the Board ensures fairness, it is master of its own procedure.

70. The question of course is whether, bearing in mind that reputations and livelihoods are at stake, the procedures that have been laid down are fair.  The graver the charge, the more important the opportunity to challenge it.

71. Looking at the process as a whole, it seems to me to be a fair process.  A person in the position of the applicant is entitled to a full hearing at first instance and is given full rights of appeal; he is not, for example, restricted to appealing on matters of law.  At first instance he is entitled to full disclosure of relevant materials and, both at first instance and on appeal, may make representations.  If it was left at that, if there was no review procedure, there could be no complaint.

72. But there is a review procedure and, if adverse findings are made against a person in the position of the applicant, it is a mandatory procedure.  It must also be recognised, I think, that, with his reputation and perhaps his livelihood at stake, a person in the position of the applicant is entitled to fairness at each stage of the disciplinary proceedings.

73. The essential question therefore must be : did the review procedure deal fairly with the applicant?

74. I accept fully that a review may still allow for representations.  Indeed, this judgment is a review judgment and has been made in the light of representations made.  I accept that the applicant was not permitted in terms of the Board’s rules of procedure to make representations.  Indeed, without access to the judgment of the inquiry committee it may be said that any submissions that were permitted would have been of limited or no value.  I further accept that fairness will in cases of this kind more often than not require that a person in the position of the applicant be given the opportunity to make representations.

75. But fairness must be judged in the context of each individual case and in the present case the review procedure – unlike the procedure before this court – was clearly designed to be purely internal and narrow in compass.

76. The review conducted was a review solely of the inquiry committee’s findings contained in its judgment.  The only material before the review committee was the judgment itself and the record of proceedings.  The function of the review committee was not to examine the material before it in order to form its own view of the merits.  It was not to receive fresh evidence or to act as some kind of lower court of appeal.  It was the function of the review committee to safeguard the interests of both the applicant and the profession by determining whether, on the limited material before it, the findings of the inquiry committee were reasonable in that they were findings which a reasonable body of persons knowledgeable in matters of the engineering profession could reach.

77. If I may express it this way, the review process was focused on the decision of the inquiry committee as set out in its judgment, it was not focused on whether further evidence or further submissions may persuade the review committee that the judgment was erroneous in some way.  That was a matter for any appeal.

78. I may be of the view that it would have been fairer to supply the applicant with a copy of the inquiry committee’s judgment and to allow him to make representations in respect of the adverse findings in the judgment.  But, as I have said, the legislature has made the Board the master of its own procedure.  The issue therefore is not what was the most fair procedure but simply whether the review stage of that procedure, viewed in context, was fair.

79. Representations from the applicant were not permitted because they were not relevant to the limited scope of the review.  A copy of the judgment of the inquiry committee was not given to the applicant because at that stage it was still essentially provisional and subject to confirmation on review.  In any event, if representations at that stage were not integral to the review process, there was no need in fairness for the applicant to be given a copy of the judgment.

80. In all the circumstances, I am unable to conclude that the review stage of the disciplinary proceedings was unfair to the applicant.

81. However, I confess that, if the review committee had imposed a more serious penalty on the applicant, then the failure to allow him to make representations may well have been found to be unfair.  In those circumstances the applicant would have been more severely punished by a committee of persons unknown to him without the ability to make any kind of informed representations.  As it was, however, the review committee did not in any way alter the findings of the inquiry committee.

82. I confess that I was also troubled by the apparent fact that the applicant had no knowledge of who would sit on the review committee.  He was, therefore, for example, unable to consider whether any of the committee members should properly be challenged for bias or some broader conflict of interest.  As it is, however, the names being revealed, no suggestion has been made that any of the members should not have sat.  The concern, therefore, is – on the facts of this case – theoretical.

83. In summary, although in this instance I am satisfied that the Board’s rules of procedure visited no unfairness on the applicant, I believe the Board would be well advised to look again at those rules to see how they may be amended to avoid the risk of any future unfairness.

Conclusion

84. For the reasons given, this application for judicial review must be dismissed.

85. The applicant, I understand, is legally aided.  His costs will be taxed in accordance with Legal Aid Regulations.

86. If the respondent seeks an order for costs, I see no reason at this time why it should not be granted.  A written application, however, should be made, copied to those who represent the applicant.  If that application is to be opposed, I will hear argument.