CHAN TAT WING v. DISCIPLINARY BOARD

CACV 22/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 22 OF 2011

(ON APPEAL FROM AN INQUIRY BY DISCIPLINARY BOARD)

____________

BETWEEN

____________

_______________________

REASONS FOR JUDGMENT

_______________________

Hon Cheung JA:

1.  I agree with the reasons for judgment of Yuen JA.

Hon Yuen JA:

2.  This is an appeal from a decision dated 6 January 2011 of the Disciplinary Board (“the Board”) appointed under the Land Survey Ordinance Cap.473 (“the Ordinance”) to inquire into the conduct of Ted Chan Tat Wing (“the appellant”), an Authorized Land Surveyor (“ALS”), which was the subject of complaint by another ALS, Leung Shou Chun (“Leung”).  The Board found the appellant guilty of 1 charge and dismissed 2 other charges laid against him.  At the conclusion of the hearing, we dismissed the appeal and indicated that written reasons would be provided later.  These are my reasons.

3.  Before dealing with the facts of this case, I will first set out some background information. 

Deposit of land boundary plans with DSO

4.  The District Survey Office (“DSO”) maintains a record of land boundary plans.  An ALS who, after conducting a survey, has made land boundary plans, survey record plans and survey reports would deposit duplicates of these documents at the DSO.  Boundary information shown on the deposited plans would then be incorporated into the land boundary record of the Cadastral Information System (“CIS”).

5.  From to time, surveys conducted by different ALSs might result in conflicting boundaries which caused problems of incorporation into the CIS.      

Circular on conflicting surveys

6.  On 5 May 1998 the Legislation Section of the Survey & Mapping Office of the Lands Department issued “Land Survey Authority Circular No.2/98" to all ALSs, setting out the Land Survey Authority’s instructions as follows:    

“When there is conflicting boundary information between two submissions, the survey with plans deposited with ... the DSO first will have priority over the second one. Unless there is evidence to suggest that the boundary information of the first one is wrong, the second ALS will be advised to amend his/her boundary definition to accord with that of the first one. It would be up to the second ALS to prove the first one wrong should he/she dispute the amendment request. Even where no overt mistake can be proved in the first survey, the second ALS can always challenge the first ALS’s boundary definition in a court of law if he/she so wished. Boundaries of the second survey will be incorporated into the CIS only when the boundary conflicts have been resolved”. (Emphasis added).

Guidance Notes for Land Boundary Survey

7.  The surveyors’ professional body, the Hong Kong Institute of Surveyors, issued the following Guidance Notes for Land Boundary Survey:

“A Professional Land Surveyor must release his/her boundary data and control data as far as possible to the other Professional Land Surveyors ... to enable people to enjoy secured land ownership and settlement in respect of land boundary aspect”. (Emphasis added).

8.  In other words, with the purpose of achieving consistency in boundary survey results, ALSs are under an obligation to release information to one another to enable settlement of boundaries.  The good sense of this obligation is easily perceived.

Facts

9.  Turning now to the facts of this case, the background facts have been set out in full in the decision of the Board.  The facts which are essential to the determination of this appeal fall within a much narrower compass.

Leung’s survey 1998-1999

10.  Essentially, in 1998-1999, the owner of Lot 325 in DD 206, Shatin, New Territories instructed Leung to survey his lot.  Leung duly deposited his boundary plan, survey record plan and survey report with the DSO. 

11.  Subsequently the owner of Lot 325 built a house on land (“the disputed land”) which, according to Leung’s survey, was part of Lot 325.

The appellant’s survey 2003

12.  A few years later, in 2003, the owner of Lot 329 instructed the appellant to survey his lot.  On 20 October 2003, the appellant prepared a report (“the appellant’s full report”).

13.  On 8 December 2003, the appellant deposited his boundary plan, survey record plan and a brief survey report (“the appellant’s brief report”) with the DSO.  In this report, the disputed land was included as part of Lot 329, not Lot 325.  In other words, this gave rise to conflicting boundaries which the Lands Department circular and the professional body’s guidance notes were designed to avoid through the obligation discussed above.  This forms the crux of the appeal.

14.  As a result of the appellant’s survey, the owner of Lot 329 demanded that the owner of Lot 325 demolish the house.  The owner of Lot 325 refused to do so.

DSO inquiry letter

15.  Meanwhile, the DSO had noticed that the appellant’s survey record plan showed boundaries of Lot 325 and Lot 329 which conflicted with the boundaries shown in Leung’s earlier survey record plan.  (There was in fact also a 3^rd survey record plan deposited by a 3^rd surveyor, but that is not material to this appeal).

16.  Accordingly on 18 December 2003 (“ the DSO inquiry letter”) the DSO wrote a letter to the appellant, expressly copied to Leung, pointing out the conflicting boundaries, and specifically asking the appellant:

“Are you discussing, or going to discuss, with [Leung] ... about your survey result and the boundaries of lot 325 and lot 329 thereof?”

17.  The appellant did not reply to this letter until 10 February 2004 (see para. 19 below).  In the meantime, Leung deposited a supplemental report on 23 December 2003 setting out the site situation, other evidence and his study methodology to support the results of his earlier survey.  The appellant did not do anything else at this stage.

HCA181/2004

18.  On 31 January 2004, the owner of Lot 329 sued the owner of Lot 325 in HCA181/2004.

“The appellant’s reply”

19.  On 10 February 2004, the appellant replied to the DSO inquiry letter (“the appellant’s reply”). In this letter, which was not copied to Leung, the appellant alleged:

“... we know thatboth lots had been previously redefined by [Leung and the 3^rd surveyor] respectively, and both parties were informed of our opinions prior to the completion of our work”. (Emphasis added).

Third party proceedings

20.  On 4 March 2004 the owner of Lot 325 issued a third party notice against Leung.

Withholding of “the appellant’s reply” from Leung

21.  On 11 January 2005, Leung wrote to the DSO asking if there was any reply from the appellant to the DSO inquiry letter.  As noted above, “the appellant’s reply” was sent only to the DSO on 10 February 2004, and not to Leung, even though the DSO inquiry letter had been expressly copied to Leung. 

22.  On 31 March 2005 the DSO replied to Leung saying they were seeking the appellant’s consent to provide him with a copy of “the appellant’s reply”.  Subsequently on 28 April 2005, the DSO replied to Leung saying that the appellant had notified them not to provide Leung with a copy of “the appellant’s reply”.   

23.  It was not until 28 September 2006 that “the appellant’s reply” was eventually disclosed by the owner of Lot 329 to Leung in the course of specific discovery in HCA181/2004. It was only then that Leung discovered that the appellant had claimed to the DSO that he had informed Leung of his opinion before depositing his (the appellant’s) survey plan. 

Dismissal of HCA181/2004

24.  To cut a long story short, HCA181/2004 was heard before Recorder Kwok SC in 2007.  The appellant appeared as expert witness for the owner of Lot 329.  In a judgment dated 26 October 2007, the learned Recorder rejected the appellant’s approach to the survey and his methods, and criticized him for following his client’s instructions notwithstanding professional investigation results to the contrary.  The Recorder dismissed the action with costs to the owner of Lot 325 and Leung.  

Disciplinary charges

25.  Leung lodged a complaint against the appellant to the Board which resulted in 3 charges being laid against the appellant.  The appellant also lodged a counter-complaint against Leung. 

26.  In a decision dated 6 January 2011 the Board unanimously found the appellant guilty of the 2^nd charge only.  The 1^st charge was dismissed by a 2:1 majority, and the 3^rd charge was dismissed unanimously.  The charge against Leung was also dismissed unanimously.  This court is concerned only with the 2^nd charge.  

The 2^nd Charge

27.  The 2^nd charge was that contrary to s 20(d) of the Ordinance (relating to negligence and misconduct of surveyors), the appellant failed to release his correspondence with the DSO “timely and in such reasonably possible extent” to Leung, and as such was guilty of misconduct in a professional respect.

28.  The Board had divided the 2^nd charge into 3 separate occasions, the 3^rd of which was the appellant’s instruction to the DSO in April 2005 to withhold “the appellant’s reply” from Leung.

The Board’s Decision

29.  The Board found the appellant guilty of the 2^nd charge in relation to the 3^rd occasion only.  By a majority, the Board decided to reprimand the appellant and to order the Registrar of ALSs to record the reprimand on the register.  

30.  On appeal the appellant sought an order that the 2^nd charge be dismissed and the Board’s order set aside.  We dismissed the appeal. 

Discussion

31.  As set out above, “the appellant’s reply” to the DSO claimed that he had informed Leung of his opinion prior to the completion of his work.  And as noted above, “the appellant’s reply” was to a letter from the DSO which had been expressly copied to Leung. Yet the appellant did not copy his reply to Leung.  The Tribunal held that there was no proof that the appellant’s omission was “deliberate”.

32.  However when the DSO later specifically asked the appellant if they could release “the appellant’s reply” to Leung, he notified them to withhold it from Leung.  No explanation had been given by the appellant why he gave the DSO those instructions on “the appellant’s reply” which clearly pertained to surveyors’ professional obligations of disclosure with a view to resolving boundary conflicts.

33.  The appellant only suggested though his counsel that by April 2005, when he gave instructions to the DSO to withhold “the appellant’s reply”, Leung had already been made a third party in HCA181/2004.  We do not see how that affected matters. 

34.  First, the appellant’s counsel has disclaimed any argument of legal professional privilege regarding “the appellant’s reply”.

35.  Secondly, in February 2004 when a copy of “the appellant’s reply” should have been sent to Leung, Leung was not a party to litigation. 

36.  Thirdly, this excuse for withholding “the appellant’s reply” on account of Leung’s inclusion in the court action is inconsistent with the fact that the brief report was disclosed by the appellant to Leung on 30 March 2004, after Leung had been made a third party.

37.  Fourthly, the fact that Leung was made a party to litigation made it even more important that “the appellant’s reply” should have been disclosed, whether under the obligations of discovery of the appellant’s client, the owner of Lot 329 (who subsequently did make disclosure), or under the professional body’s guidance notes stipulating disclosure of information so that disputes are settled, not promoted.

38.  By reason of the above, I took the view that the Board was entirely within its powers to find that in withholding “the appellant’s reply”, which related to the issue whether the respective surveyors had exchanged information, the appellant had not achieved the primary role of a land surveyor and had thus fallen short of the standards of conduct expected of authorized land surveyors.

Order

39.  Accordingly we dismissed the appeal.  As the respondent was excused from attending the hearing of this appeal, there may not be any costs, but in case any costs were incurred, we would make an order nisi that the appellant pay the respondent’s costs.

Hon Kwan JA:

40.  I agree with the Reasons for Judgment of Yuen JA.