CHOY BING WING v. PRESIDENT OF HONG KONG INSTITUTE OF ENGINEERS (HKIE)

HCA 1994/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1994 OF 2012

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REASONS   FOR   DECISION

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1.  The plaintiff (“Choy”) is a member of the Hong Kong Institution of Engineers (“Institution”). In October 2012, Choy commenced proceedings against the defendant, named as “President of Hong Kong Institute of Engineers (HKIE)” (“President”), to seek an injunction to prevent the President from continuing disciplinary proceedings against Choy, and for “any judicial remedies as the court thinks fit”.

2.  On 29 November 2012, the President applied by summons to strike out Choy’s action, on grounds that the action discloses no reasonable cause of action, is frivolous or vexatious and is otherwise an abuse of process (“Summons”). In response, Choy issued his summons on 6 December 2012, to strike out the Summons.

3.  On 31 May 2013, the Master struck out Choy’s action, and further dismissed his application to strike out the Summons.

4.  By notice issued on 7 June 2013, Choy appealed against the Master’s decision.  After hearing the parties on 1 August 2013, I dismissed the appeal. The following are my reasons.

5.  The Institution was incorporated under The Hong Kong Institution of Engineers Ordinance Cap 1105 of the Laws of Hong Kong (“Ordinance”).  Under section 3 of the Ordinance, the Institution is established as a body corporate, capable of suing and being sued.  A Council of the Institution is established under section 7 of the Ordinance, which Council consists of persons holding the offices of President, Vice‑President, Honorary Secretary, and others.  Management of the Institution is vested in the Council, by virtue of section 8 of the Ordinance.

6.  A Constitution is adopted by the Council under section 10 of the Ordinance (“Constitution”).  Under Article 13 (4) (a) of the Constitution, the Council may appoint a panel from which Boards of Inquiry may be formed for the purpose of considering and making recommendations to the Council in regard to any case of “improper conduct” of a member of the Constitution.  If a member is found by the Board of Inquiry (“Board”) to have been guilty of improper conduct, the Council may order the member to be expelled from the Institution, or that his membership be suspended, or that he be reprimanded or be removed as a member.  “Improper conduct” is defined in Article 13 (5) to include, inter alia, “conviction by a competent tribunal of a criminal offence which in the opinion of the Council renders a member unfit to be a member”.

7.  Choy was committed for contempt of court on 2 occasions (Judgment dated 25 October 2005 in HCMP 4694/2003 and Judgment dated 7 January 2011 in HCMP 1313/2010), for which Choy was sentenced to 6 months’ imprisonment (Ruling as to Penalty dated 7 December 2005 in HCMP 4694/2003) and 4 months’ imprisonment (Judgment on Penalty dated 11 February 2011 in HCMP 1313/2010) respectively.

8.  Choy’s complaint, as set out in the Statement of Claim filed in these proceedings, is that disciplinary proceedings were wrongfully instituted by the Institution against him, on the basis that there was a case of “improper conduct” on Choy’s part, by virtue of his having been “convicted of being in contempt of court” and ordered to serve a period of imprisonment.

9.  Choy sought to make a distinction between his having been “convicted” of a criminal offence, and his having been “committed” for contempt of court.  He sought to argue that contempt of court is not a criminal matter, that he had not been “sentenced” to imprisonment in a criminal manner, that a committal for contempt does not amount to a criminal conviction, and that accordingly, the disciplinary inquiry initiated against him was not justified and had no basis.

10.  It is clear from the Judgments referred to in paragraph 7 above that Choy’s committal for contempt of court was based on his words and acts of interference with the due administration of justice, which conduct is classified as criminal contempt (para 110.002, Vol 7(1) Halsbury’s Laws of Hong Kong, 2010 Reissue).  The distinction was in fact explained in paragraphs 9 to 16 of the Second Judgment of 12 December 2005 in HCMP 4694/2003.

11.  Choy himself argued at the hearing before the court on 6 December 2005 in HCMP 4694/2003 that the contempt of which he stood accused in those proceedings was a criminal contempt.  For him to claim otherwise in these proceedings amounts by itself to abuse.

12.  Irrespective of the substance of Choy’s complaint as to the alleged lack of legal basis for the disciplinary proceedings commenced by the Institution against him, the Statement of Claim does not disclose any cause of action against the President personally.  Choy’s complaint is that the Institution had abused the process of the disciplinary proceedings, and had breached an alleged duty of care owed to Choy as a member of the Institution.  No act is pleaded against the President, save that he is alleged to have, “through his servants, insisted to commit a legal wrong based on the persecution by the HKSAR against the Plaintiff … to hold an inquiry against the Plaintiff”.  I consider that no arguable cause of action has been disclosed on the pleadings against the President.

13.  The claim that the President’s actions, if any, are based on the persecution by HKSAR against Choy is obviously unsustainable, is frivolous and vexatious, and should be struck out.

14.  Further, on the evidence filed, according to Article 30 of the Constitution, as a member of the Council of the Institution, the President does not incur any personal liability in respect of any loss or damage incurred through any act, matter or thing done, authorized or suffered by him, being done in good faith for the benefit of the Institution.  There is no plea of why and how the President should incur personal liability in respect of the disciplinary proceedings initiated by the Institution against Choy under the Constitution.

15.  For all the above reasons, I dismissed the appeal, with costs to the President.