LOK MAN FAI FELIX v. ARCHITECTS REGISTRATION BOARD

CACV 268/2017

[2019] HKCA 405

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 268 OF 2017

(ON APPEAL FROM THE DISCIPLINARY ORDERS OF THE INQUIRY COMMITTEE OF THE

ARCHITECTS REGISTRATION BOARD DATED 30 AUGUST 2017)

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REASONS FOR JUDGMENT

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Hon Lam VP (giving the Reasons for Judgment of the Court):

1.  On 15 March 2019, after hearing counsel, this Court allowed the appeal, set aside the decision of the Inquiry Committee in respect of the complaints against the Appellant of 24 July 2017 as confirmed by the Review Committee on 12 August 2017. We remitted the disciplinary proceedings to a differently constituted Inquiry Committee to consider the complaints afresh. We now give our reasons for allowing the appeal.

2.  With the consent of the parties, the appeal was heard by a two-member court. 

3.  As directed by this Court after hearing counsel on 4 December 2018, the hearing on 15 March 2019 focused on Ground 2 in the Notice of Appeal of 24 November 2017.  Ground 2 is as follows:

“ 2. There is no detailed finding of facts or law by the inquiry committee in reaching its 10 conclusions. There is also no reason given in relation to its 10 conclusions.”

4.  This ground of appeal was advanced in light of the lack of reasons in the decision of the Inquiry Committee of 24 July 2017 to support the findings reached by them.  After setting out the complaints against the Appellant, the report of the Inquiry Committee stated their findings as follows:

“(1) Inadequate effort to monitor and ensure that the outstanding record of fire test certificates for fire-rated door and windows were promptly submitted. These certificates are considered as critical documents directly related to the Practical Completion of the Works required. Whilst the Respondent’s witness verbally indicated during the Hearing that there were records in their office archive, it has not been included in the Respondent’s submission so far;

(2) Inadequate supervision of Lee Cheong to carry out the external wall works as required under the Refurbishment Contract, particularly with respect to the measures in mitigating water seepage issue at the captioned property;

(3) Inadequate supervision of Lee Cheong to demolish the existing floor tiles and screeding to structural concrete level at the EVA road and the lower podium paving area required under the Refurbishment Contract, particularly with respect to the reduction of the effective parapet height of escape staircase along EVA road as charged by the Buildings Department;

(4) Negligence in using working day instead of calendar day in assessing and granting extension of time for completion of the Refurbishment Contract;

(5) Inadequate action to follow up with Lee Cheong in providing prompt response to Sino Estates Management Limited regarding the outstanding inspection and test reports listed in Annex 29 (i.e. letter of Sino Estates Management Limited dated 7 December 2012);

(6) Imprudent practice of neglecting the reduced rate submitted by Lee Cheong during payment certification process and delay/refusal in making subsequent adjustment;

(7) Negligence in design which led to non-compliance of the minimum standard of sound level of Fire Alarm System under Regulation 8(a) of the Fire Services Regulations, as charged by the Fire Services Department;

(8) Failure in noticing outstanding installation of U-traps as charged by the Buildings Department which was regarded as violation to the Building Regulations;

(9) Improper use of the professional title of “RIBA” since 2007 which still appeared on his business card when he was no longer a RIBA member. This has raised concern on his professional integrity; and

(10) Inadequate care in valuation and over-certification of concrete repair work, steel work and metal work at common areas under the Bills of Quantities of the Refurbishment Contract.”

5.  There had been two hearings (with total hearing time of 14 hours) before the Inquiry Committee. The Appellant and the Complainant were represented by counsel at the hearing. Voluminous written materials were placed before the Inquiry Committee and substantial written submissions were produced.

6.  Unfortunately, in the decision of 24 July 2017 the Inquiry Committee did not discuss the evidence or the competing submissions before it.  In respect of the findings reached by the Inquiry Committee, it is impossible for us to tell the basis for reaching the same.  In English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409 at [19], the English Court of Appeal identified the significance of the reasons for the first instance decision for the appellate process:

“ 19. It follows that, if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the Judge reached his decision. This does not mean that every factor which weighed with the Judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the Judge’s conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the Judge to identify and record those matters which were critical to his decision. If the critical issue was one of fact, in may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon.”

7.  The same rationale applies in the context of review and appeal in disciplinary matters.

8.  In this appeal, when the Appellant sought to put in additional evidence for the purpose of the appeal (by a summons of 18 September 2018), this Court found itself unable to process the same since one of the criteria under Ladd v Marshall [1954] 1 WLR 1489 is that new evidence must be such that, if given, it would probably have an important influence on the result of the case (though it need not be decisive).  Without any idea as to the reasoning of the Inquiry Committee in reaching their findings, this Court could not assess if this criterion is satisfied.

9.  Thus, on 4 December 2018, this Court gave directions for determination of Ground 2 ahead of other grounds and the summons of 18 September 2018.  The Court also gave directions for lodging of submissions on Ground 2, specifically directing that such submissions should also address whether this Court could and should either direct the Inquiry Committee and/or the Review Committee to give reasons for their decision(s) or remit the case back to these Committees.

10.  We received very comprehensive submissions from counsel and we are grateful for their assistance. 

11.  Before we discuss the merits of the arguments, it is helpful to refer to the statutory regime for disciplinary proceedings under Part IV the Architect Registration Ordinance [“ARO”] Cap 408.

12.  For our purposes, we would highlight the following provisions in the ARO, starting with section 22:

“ 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) The inquiry committee shall not proceed to hear evidence of a complaint concerning a disciplinary offence unless the registered architect in respect of whom the complaint is made is given 28 days’ notice of the complaint and the date, time and place of the hearing.

(4) The registered architect referred to in subsection (3) shall be entitled to attend and hear all evidence produced at the hearing and shall be provided with a copy of this Ordinance and any rules made under this section.

…”

13.  Section 23 provides for the appointment of legal adviser to advise an inquiry committee and a review committee on points of law and procedure.

14.  Section 24(1) is important in the present context as it sets out the requirement that the findings by an inquiry committee have to be confirmed by a review committee.  It reads:

“ Where an inquiry committee finds that a registered architect committed a disciplinary offence, on confirmation by a review committee of the finding, or on the variation of the finding or any proposed order based on the recommendation of the review committee, the inquiry committee may make any one or more of the following orders—

(a) order the Registrar to remove the name of the registered architect from the register;

(b) order the Registrar to remove the name of the registered architect from the register for such period as the inquiry committee may think fit;

(c) reprimand the registered architect in writing and order the Registrar to record the reprimand on the register;

(d) order that an order made under this section be suspended, subject to such conditions as the inquiry committee may think fit, for a period not exceeding 2 years;

(e) order that the Board shall not accept an application from the registered architect for registration as a registered architect either for a fixed period or until the registered architect satisfies the Board that he should be registered;

(f) order that the Chairman admonish the registered architect orally;

(g) order the registered architect to pay all or part of the costs of any of the Registrar, the Board or the inquiry committee arising from the case if, but only if, the inquiry committee is satisfied that in all the circumstances of the case it would be unjust and inequitable not to do so.”

15.  In other words, the statutory scheme provides for a two-tier system: before an inquiry committee may make a disciplinary order, the findings and proposed orders have to be confirmed by the review committee.

16.  The function of the review committee is set out at Section 26:

“ (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 24 to the Board for review.

(2) The Board shall appoint 3 of its members to sit with the Chairman as a review committee to review the decision of the inquiry committee.

(3) The Board shall not appoint a member of the inquiry committee to be a member of the review committee.

(4) The review committee may—

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

(b) reverse a finding of guilt by 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.

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

17.  It is noteworthy that it is open to the review committee to reverse the findings by the inquiry committee, see section 26(4)(b) and to remit the matter to the inquiry committee, see section 26(4)(d).  The statute thus envisages a second tier merit review instead of a general consideration of the adequacy or inadequacy of the disciplinary orders to be imposed in light of the findings of the inquiry committee. 

18.  To be able to perform its role properly, the review committee must know the reasons for the inquiry committee in reaching their findings.  Thus, in Section 26(1) the decision of the inquiry committee forwarded to the review committee must contain such reasons.

19.  Section 27(1) expressly provides for reasons to be given by the inquiry committee:

“ The Registrar shall serve a copy of any order made under section 24(1), together with a copy of the inquiry committee’s reasons, or serve notice that the inquiry committee has not found that the registered architect concerned committed a disciplinary offence, upon the registered architect concerned, either personally or by registered post addressed to his registered address immediately when the Registrar receives—

(a) the report of the review committee, unless the inquiry committee is to reconsider its decision; or

(b) any order of the inquiry committee reviewed under section 26(4)(d).”

20.  It follows from Section 27(1) that the duty to give the architect the inquiry committee’s reasons must be fulfilled at the latest by the time when the order is served by the Registrar.  However, as explained above, before the service of the order, as between the inquiry committee and the review committee, the reasons should be given before the review committee decides whether to confirm the findings and proposed orders of the inquiry committee.

21.  The appeal mechanism is laid down in Section 29.  For present purposes, it suffices for us to refer to Section 29(1) to (3):

(1)  Any person who is aggrieved by any decision or order made in respect of him under section 15(1), 16(5) or 24(1) may appeal to the Court of Appeal.

(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.

22.  The time limit for the bringing of an appeal is 3 months after the architect being served with the orders under section 24(1): see Section 29(7)(b).  This Court does not have the power to hear any appeal if an appeal is not brought within such time limit.   

23.  We can now consider the submissions of counsel against such statutory setting for disciplinary procedures under the ARO.

24.  Mr Suen submitted on behalf of the Respondent that this Court has the power to direct the Inquiry Committee to give reasons or to remit the case back to the Inquiry Committee without determining the appeal.  He also submitted that we should exercise these powers in the present case. 

25.  On the other hand, Mr Lam submitted on behalf of the Appellant that this Court does not have such power and once we found that no reason was given in the decision of 24 July 2017, we should allow the appeal.  Upon the appeal being allowed, counsel accepted that we should remit the case back to the Inquiry Committee though he contended it should be heard by a differently constituted Inquiry Committee.

26.  We decided that we should allow the appeal and remit the matter to a differently constituted Inquiry Committee.

27.  The court in processing appeals or applications for leave to appeal from a lower court does have the power to direct for supplemental reasons to be given by the lower court (see English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409, Barke v SEETEC Business Technology Centre Ltd [2005] EWCA Civ 578).  However, the position may not be the same when we are dealing with an appeal from a statutory tribunal.  In the latter situation, the primary consideration is the statutory regime. 

28.  A statutory regime can expressly provide for supplemental reasons to be given by the tribunal or for reasons to be given upon an appeal being brought.  Even in those situations, there could be human rights considerations if the determination of the tribunal is a determination of a person’s rights and obligations in a suit at law and the right to a fair trial under Art 10 of the Hong Kong Bill of Rights is engaged.  

29.  Alternatively, a statutory regime can be silent as to whether such a course is open.  In that case, if there is nothing in the language of the statutory provisions which prohibits an appeal tribunal to direct for supplemental reasons, the court may conclude as matter of implication from the duty to give reasons or by way of common law that such direction could be given.  This was the situation in Barke v SEETEC Business Technology Centre Ltd [2005] EWCA Civ 578.

30.  However, when the statutory regime either expressly or by necessary implication prohibits such a course to be adopted, the court cannot disregard such prohibition.

31.  In the present case, it is clear to us that the ARO does not permit this course to be adopted when the case has reached the stage of an appeal to this Court. 

32.  As discussed above, the statutory regime under the ARO provides for a two-tier process before the making of a disciplinary order.  The decision of the Inquiry Committee, includes their findings, has to be confirmed by the Review Committee.  Without reasons being given by the Inquiry Committee, it would not be possible for the Review Committee to perform its role of review, which as we have seen, is not a mere procedural formality. Thus, by necessary implication, the ARO envisages that the Inquiry Committee should set out the reasons for the findings when the decision is placed before the Review Committee for confirmation.   

33.  Whilst it may be open to the Review Committee to remit the decision back to the Inquiry Committee for reasons or supplemental reasons to be given under Section 26(4)(d), this power cannot be exercised after the confirmation of the decision by the Review Committee. 

34.  By the time of the bringing of an appeal to the Court of Appeal, it is no longer possible for further reasons to be given by the Inquiry Committee because the Review Committee did not consider those further reasons when the decision was confirmed.  To allow reasons or further reasons to be given by the Inquiry Committee after such confirmation would deprive the architect concerned of a proper review by the Review Committee.  It is therefore against the two-tier regime in the ARO.    

35.  Further, even assuming that the court has the power to direct for reasons or further reasons, we are of the clear view that such discretion should not be exercised in the present instance for the following reasons. 

36.  Firstly, there had been a long lapse of time since the hearing by the Inquiry Committee.  Thus, there is a high risk that members of that committee could not recall the reasons for reaching their findings.  As we mentioned earlier, quite a large amount of materials were placed before the committee.  There were altogether 19 complaints put forward against the Appellant related to different aspects of his involvement in the refurbishment project of a whole building in Kowloon City.  Mr Suen alluded to the availability of transcripts and other written materials to assist the members and they are professional people.  Even so, we still regard the risk as high.

37.  Secondly, the reasons that are to be given should be those reasons held by the members of the Inquiry Committee at the time when they made the decision, not the reasons given belatedly.  In Barke v SEETEC Business Technology Centre Ltd, supra, the English Court of Appeal highlighted the difference between professional judges and other tribunals.  In the latter case, the risk of ex post facto reasoning is much greater. This is particularly so in the present case in view of the lapse of time.  We do not accept Mr Suen’s submission that members of professional tribunal like the Inquiry Committee should be put in the same category as judges.

38.  Thirdly, this is a case where no reason was given as opposed to inadequate reasons being given.  As observed by Dyson LJ (as he then was) in Barke v SEETEC Business Technology Centre Ltd, supra, at [46]:

“ … there are dangers in asking the original tribunal for further reasons where the ground of appeal is inadequacy of reasoning. It will not be appropriate where the inadequacy of reasoning is on its face so fundamental that there is a real risk that supplementary reasons will be reconstructions of proper reasons, rather than the unexpressed actual reasons for the decision.”

39.  Fourthly, given that the statutory scheme expressly provides for reasons to be given at the time of the decision, we are of the view that the following constraint laid down by Hutchison LJ in R (Ermakov) v Westminster City Council [1996] 2 All ER 302 on evidence to explain the reasons for an administrative decision in the context of judicial review should equally be applicable here:

“ … the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction. Certainly there seems to me to be no warrant for receiving and relying on as validating the decisions evidence … which indicates that the real reasons were wholly different from the stated reason … and if no reasons … or wholly deficient reasons are given, he is prima facie entitled to have the decision quashed as unlawful.”

40.  In Barke v SEETEC Business Technology Centre Ltd, supra, at [35], Dyson LJ said the Ermakov approach had not been universally applied even in the context of judicial review.  He also endorsed the judgment of Richards J in R (Richardson and another) v North Yorkshire County Council [2004] 1 WLR 1920 at [33] highlighting that the consequences of a failure to give reasons depend very much on the statutory context and the particular circumstances of the case. 

41.  We bear these comments in mind and take into account the context of ARO and the facts of the present case in holding as we did at [39]. 

42.  Mr Suen attempted to take us through the materials before the Inquiry Committee to support the findings.  Counsel submitted that in respect of findings (1), (6), (8) and (9) the reasons were obvious. 

43.  We do not think this is an appropriate course to take.

44.  Firstly, Mr Suen’s attempt failed to persuade us that the reasons for these findings were obvious.  At least, there are aspects of competing arguments which had to be resolved. 

45.  Secondly, the exercise is a futile one as one set of disciplinary orders were made for all the complaints and there is no way for the Court to sever the same in respect of each finding or complaint.

46.  Thirdly, as the decision of the Inquiry Committee should have been reviewed properly by the Review Committee, it is simply impossible to tell if the reasons were obvious to the Review Committee as they did not consider the matter with the benefit of the submissions from Mr Suen.

47.  Fourthly, and most importantly, as we said above, the Inquiry Committee had simply failed to give any reason for the findings. It would be wholly wrong in such circumstances for this Court to reconstruct what could be the reasons for such findings.  The appeal process is not to be conducted as if this Court shall hear the matter afresh by reference to the written records.

48.  For these reasons, we allowed the appeal and awarded costs of the appeal to the Appellant.  It was agreed that the costs of the original hearings before the Inquiry Committee shall be costs in the cause of the remitted hearing. 

49.  In Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority (1998) 1 HKCFAR at 279, Li CJ explained the benefits of the duty to give reasons at p.290:

“ First, it would impose desirable intellectual discipline and concentrate attention on the relevant issues. It would thus assist in ensuring that any decision is made on proper grounds and contribute to the effective disposal by the tribunal of its work. Secondly, reasons would assist in demonstrating to the parties that the tribunal has carried out its task properly and would enable them to decide on the appropriate course of action in the case at hand, including whether to appeal or apply for judicial review. It would also provide guidance in the future to the community and persons concerned in this area … Thirdly, the reasons given by the tribunal will promote and enhance consistency in its decision making and assist the law enforcement and prosecuting authorities. I would observe that broad consistency in approach is important. Fourthly, the giving of reasons would demonstrate to the community that the tribunal is functioning properly and this would engender public confidence.”

50.  In Dr Wu Hin Ting v Medical Council of Hong Kong [2004] 2 HKC 367, Ma CJHC (as Ma CJ then was) said at [34] that given the serious consequences of disciplinary proceedings, it must be an extremely rare case for reasons for a decision not to be required.  His Lordship explained that as a matter of fairness.

“ …The underlying rationale is of course not just fairness to the individual concerned to know why his peers have found against him, but also more generally that unless reasons are given, it may not be obvious at all that justice has been done…”

51.  Every member of disciplinary boards should bear in mind these observations in the performance of his duty in deciding disciplinary cases.