LI SANG EDWARD v. DISCIPLINARY BOARD UNDER THE LAND SURVEY ORDINANCE

CACV 210/2023, [2024] HKCA 197

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 210 OF 2023

(On Appeal from an Inquiry by THE Disciplinary Board under Land Survey Ordinance (CAp.473))

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal from the decision of the Disciplinary Board (“Board”) set up under the Land Survey Ordinance (Cap 473) (“Ordinance”) dated 13 June 2023 (“Decision”) and its order of sanction dated 21 June 2023 (“Order”).  The proceedings below had arisen from a complaint made by the appellant in this appeal, Mr Li (to whom we shall refer as the “Complainant”), against the interested party in this appeal, Mr Chan (to whom we shall refer as the “Surveyor”), in respect of his professional conduct as a land surveyor.  The Board found one of the disciplinary charges established and made an order that the Surveyor be reprimanded and that the reprimand be recorded on the register of authorised land surveyors.  By this appeal, the Complainant seeks an order that the Surveyor should be removed from the register for an appropriate period determined by this court.

2.  The Complainant has appeared before us in person.  The Surveyor originally indicated that he took a neutral stance to the appeal and would not take part in it, but eventually instructed counsel to appear in opposition to the appeal.  The Board has properly taken a neutral stance on this appeal but, on the direction of this court, has appeared by Mr Chik, Senior Government Counsel, to render assistance.

Background

3.  The Surveyor is an authorised land surveyor registered under the Ordinance and practises as such through his firm, Ted Chan & Associates Ltd (“firm”). 

4.  The Complainant is the registered owner of Lot No. 1211B in Demarcation District 117, Yuen Long (“Lot”).  The Lot was granted by the Government to Li Fo Tai, the Complainant’s grandfather, in 1914 by way of a sale by private treaty.  The grant itself could not be traced and the only document available evidencing the sale was an internal government document in the case processing file of the land grant, numbered CSO 1373/1914, to which we shall refer as the “CSO document”. 

5.  On 21 November 2015, with a view to having the Lot redeveloped, the Complainant instructed the firm to conduct a survey of the Lot.  There was no engagement contract signed between the parties.  The Complainant paid a deposit and signed a form (no. SMF-0043) intituled “Voluntary Submission of Land Boundary Plan / Survey Record Plan to District Survey Office for Sharing Purpose”, which is a form for giving permission to the District Survey Office (“DSO”) to keep and distribute the plans and reports submitted by the authorised land surveyor to the DSO.

6.  On 22 March 2016, the firm produced a Survey Record Plan (“Plan”), which stated the surveyed area of the Lot to be about 22.8 m².  The Plan was signed by the Surveyor as an authorised land surveyor, stating:

“ I, Chan Tat Wing, an Authorised Land Surveyor registered under the Land Survey Ordinance (Cap. 473), hereby certify that this survey record plan has been prepared from land boundary surveys that were carried out by me, or under my direct supervision in conformity with the Code of Practice approved by the Land Survey Authority under the above Ordinance, and that this plan correctly represents that survey completed on the 16^th day of January 2016.”

7.  On 15 April 2016, the Complainant was given a copy of the Plan and a copy of a large scale location plan with a heading “The development of Small House in Lot No. 1211B in D.D. 17” showing the location of the Lot within its neighbourhood.  The Complainant paid the balance of the firm’s fees.

8.  On 29 July 2016, the Surveyor completed and signed a survey report (“Report”) in relation to the Lot, but did not provide the Complainant with the original or a copy.  This, among other things, became the subject matter of complaint.  Eventually a copy of the Report was obtained by the Complainant from the DSO and placed before the Board for the purposes of the inquiry.  It was surprisingly not included in the appeal bundle but upon our direction a copy was supplied to the court after the hearing. 

9.  The Report explained that the boundaries of the Lot were re-established based on the existing houses on the Lot, on adjoining government land and on the adjoining Lot 2015, which were considered to be “reasonable reflection of original occupations”, “while taking outlines portrayed on Lot Index Plan into consideration”.  It went on to explain how the four boundary lines of the Lot were re-established.  It concluded that “the surveyed area of the subject lot was about 22.8 m², which resulted in a deficit of about 5.8 m² over its registered area of 308 ft², equivalent to about 28.6 m².”

10.  On 1 August 2016, without the knowledge of the Complainant, the Surveyor submitted the Plan together with the Report to the DSO “for sharing purpose”.  This was done pursuant to the scheme for voluntary submission of land boundary plans and survey record plans to the DSO under which the survey information would be made available to the public: see Survey and Mapping Office Practice Note No. 2/2013, now No. 1/2024.  This required the consent of the registered land owner, to be given in form SMF-0043, which was in this case signed by the Complainant in November 2015.

11.  Almost four years later, on 26 June 2020, the Complainant wrote to the District Lands Office, Yuen Long, applying for the necessary approval for the redevelopment of the small house on the Lot.  In the letter, the Complainant mentioned that according to the CSO document, the area of the Lot was 308 ft², but the area of the Lot as surveyed by the firm was only 22.8 m² (245.4 ft²).  The Complainant asked for assistance as to the “whereabouts” of the missing 62.6 ft².

12.  The Complainant also wrote to the Survey and Mapping Office of the Lands Department asking for assistance to locate the missing area.  On 20 May 2021, the DSO wrote to the Complainant stating that the registered area of the Lot was 308 ft² but the area according to the Surveyor’s survey was 22.8 m² or 245 ft².  It stated that the Plan and the Report had been submitted to that office in August 2016, and suggested that the Complainant consult the Surveyor to ascertain the survey result.  The Complainant said he only learnt then for the first time of the existence of the Report.

13.  On 25 June 2021, the Complainant wrote to the firm withdrawing his permission to deposit the Plan and the Report with the DSO. On 22 July 2021, the Complainant wrote to the firm again stating that the deadline for the firm to withdraw the Plan and the Report from the DSO had passed and asked the firm when those two documents would be returned to him.

14.  On 23 July 2021, the firm replied to the Complainant that the DSO had returned the submitted documents to the firm but they would not be turned over to the Complainant because the firm’s “scope of work was the submission of the relevant documents to DSO for record and the submitted documents were indeed [the firm’s] property”.

15.  On 28 July 2021, the Complainant wrote to the firm asking, inter alia, for an explanation of the “shortfall” of area as surveyed in the Plan compared with the registered area of 308 ft².

16.  On 6 August 2021, the firm wrote to the Complainant, stating that it had completed the scope of work set out in 2016 and that all documents voluntarily submitted to DSO were their own property, and that it would not make any further comments or replies in the matter.

17.  On 9 August 2021, the Complainant wrote to the firm, giving final notice that it should address his queries as a matter of urgency, including returning to him the Report and the Plan retrieved from the DSO and explaining to him why the surveyed area in the Plan fell short by 62.58 ft².  The firm did not reply to the Complainant further.

18.  In around November 2022, the Complainant engaged another authorised land surveyor, Mr Tang Sze Kin, to survey the area of the Lot.  Mr Tang concluded the surveyed area was about 28.6 m² (307.85 ft²). Based on this survey, the Complainant applied to the District Lands Office again on 19 January 2023 for re-development of the Lot.

19.  The Complainant also lodged a complaint against the Surveyor which led to the disciplinary proceedings.

The disciplinary proceedings

20.  Under the Ordinance, an authorised land surveyor is a person whose name is entered in the register of authorised land surveyors kept under the Ordinance.  Part V of the Ordinance governs disciplinary proceedings for authorised land surveyors.  A disciplinary complaint is made to the Land Survey Authority, who shall refer it to the Secretary for Development (“Secretary”).  Upon such referral, where the Secretary is of the opinion that there should be an inquiry into the conduct of the authorised land surveyor concerned, the Secretary shall appoint a disciplinary board to conduct the inquiry.  By virtue of sections 19 and 22, the Board comprises a (legally qualified) chairman and two members one of whom is an authorised land surveyor and the other is a corporate member of the Hong Kong Institute of Surveyors. The Board may receive such evidence as it considers relevant, whether or not admissible in a court: section 24(1)(a).  Under section 25, where an authorised land surveyor has been found after an inquiry to have committed a disciplinary offence, the disciplinary board may order his name to be removed from the register permanently or for such period as the board thinks fit, or reprimand him in writing and order the reprimand to be recorded on the register.

21.  The disciplinary charges that formed the subject matter of the inquiry were set out in the Notice of Inquiry as amended on 19 April 2023.  Under reg 3(3) of the Land Survey (Disciplinary Procedure) Regulation (Cap 473B), the notice of inquiry “shall  … specify the subject-matter of the inquiry in the form of a charge or charges for a disciplinary offence or offences”.  In this case, the amended notice of inquiry set out two charges.

22.  The first charge was stated as follows:

“Statement of Disciplinary Charge

Breach of the Statutory Duties under Section 20(d), (f), (g), (i) and (k) of the Ordinance

The Defendant

(a) was negligence [sic] or misconducted himself in professional respect as an authorized land surveyor;

(b) certified that the Land Boundary Plan of the Lot correctly represents the results of a land boundary survey knowing that it does not correctly represent such results;

(c) certified that the survey record plan correctly records the survey data in a land boundary survey knowing that it does not correctly record such data;

(d) certified the compliance of the land boundary survey or land boundary plan or survey record plan or field note produced from land boundary survey of the Lot with the Code of Practice approved under the Ordinance knowing that it does not so comply; and

(e) failed without reasonable excuse to perform any duty imposed on authorized land surveyors by or under this Ordinance.”

23.  Section 20(d), (f), (g), (i) and (k), breaches of which are alleged, provide as follows:

“ An authorized land surveyor commits a disciplinary offence if he — …

(d) is negligent or misconducts himself in any professional respect as an authorized land surveyor; …

(f) certifies that any land boundary plan correctly represents the results of a land boundary survey knowing that it does not correctly represent such results;

(g) certifies that any survey record plan correctly records the survey data in a land boundary survey knowing that it does not correctly record such data; …

(i) certifies the compliance of any land boundary survey or of any land boundary plan or survey record plan or field note produced from a land boundary survey with any code of practice approved under this Ordinance knowing that it does not so comply; …

(k) fails without reasonable excuse to perform any duty imposed on authorized land surveyors by or under this Ordinance”

24.  The particulars under the first charge were stated as follows:

“Particulars of Disciplinary Charge

At all material times, the Defendant was an Authorized Land Surveyor (‘ALS’) operating a land survey practice under the Ordinance in the name of Ted Chan & Associates Limited. The Registration Number of the Defendant is 007.

On 21 November 2015, the Complainant gave instruction to Ted Chan & Associates Limited to conduct a survey of Lot No. 1211B in DD 117 (‘Lot’) which is a building land in a village in Yuen Long for the purpose of making re-development application of the Lot.

The Defendant on 22 March 2016 certified in a Survey Record Plan No. SRP/YL/007/11130-01/Dl the area of the Lot as 245 square feet (22.8 square meters) knowing that the registered area should be 308 square feet.

The Defendant on 29 July 2016 provided wrong information (22.8 square meters or 245 square feet) in the Survey Record Plan No. SRP/YL/007/11130-01/Dl he deposited in the District Survey Office, Yuen Long (‘DSO/YL’) knowing that the information he provided was wrong because the correct area should be 308 square feet.

When the Survey Record Plan No. SRP/YL/007/11130-01/Dl was handed over to the Complainant on 15 April 2016, the Defendant failed without reasonable excuse to explain to the Complainant why there is a shortfall of 62.58 square feet in the area of the Lot.

The Defendant failed without reasonable excuse to explain to the Complainant why there is a shortfall of 62.58 square feet in the Survey Record Plan No. SRP/YL/007/11130-01/Dl even after repeated requests to do so on 28 July 2021 and 9 August 2021.

The Defendant failed without reasonable excuse to seek prior permission of the Complainant before depositing the Survey Report and Survey Record Plan of the Lot to the DSO/YL in July 2016.

The Defendant failed without reasonable excuse to return the Survey Report (or provide a copy thereof) to the Complainant even after repeated requests to do so on 28 July 2021 and 9 August 2021.

The Defendant failed without reasonable excuse to confirm that the Survey Record Plan No. SRP/YL/007/11130-01/Dl was the plan he submitted to the DSO/YL in July 2016 even after repeated requests to do so on 28 July 2021 and 9 August 2021.”

25.  The second charge was stated as follows:

“Statement of Disciplinary Charge

Breach of paragraph 4(a) of the Code of Practice issued under the Ordinance

At all material times the Defendant was in breach of paragraph 4(a) of the ‘Code of Practice’ issued under the Ordinance which has the General Principles for Re-establishment of Lot Boundary. The Principles require the ALS to ‘follow the intention of grant’ so that the re-established boundary ‘should not deviate materially from that as shown on the land grant document, save that part of the lot which might have been surrendered to or resumed by the Government’.

26.  The particulars of the second charge were stated as follows:

“Particulars of Disciplinary Charge

Knowing that the registered area of the Lot is 308 square feet and that no surrender to the Government has ever been made, the Defendant without reasonable excuses certified on 22 March 2016 in the Survey Record Plan No. SRP/YL/007/11130-01/Dl that the area of the Lot is 245 square feet (22.8 square meters); and

   The Defendant failed without reasonable excuse to explain to the Complainant why there is a shortfall of 62.58 square feet in the Survey Record Plan No. SRP/YL/007/11130-01/Dl even after repeated requests to do so on 28 July 2021 and 9 August 2021.”

27.  At the hearing on 26 April 2023, the Complainant and the Surveyor appeared in person before the Board and presented their respective cases, but did not call any other witnesses.

28.  In its Decision given in writing on 13 June 2023, the Board said that broadly speaking the charges were concerned with two issues: (i) the disputed area of the Lot, and (ii) the conduct of the Surveyor in relation to the engagement.[1]

29.  On (i), the Board said there was no evidence to show that the Surveyor arrived at the figure of 245 ft² as stated in the Plan with the knowledge that it was incorrect.  It noted that the Surveyor’s evidence was that it was based on his professional judgment having regard to the circumstances surrounding the Lot and, in particular, the existing structures or space being occupied by persons other than the Complainant.  The Board said that section 20(f) to (k) of the Ordinance imposed a mental element of “knowing the data or information to be incorrect”.  The Board considered that it was not its duty to adjudicate on whether 245 or 308 was the correct figure.  The Board took the view that the Complainant had failed to prove on a balance of probabilities that the Surveyor had committed any disciplinary offence by stating the area of the Lot to be 245 ft² instead of 308 ft² in the Plan, and that all the charges relating to the discrepancy between the two figures should be dismissed.[2]

30.  As regards the question of conduct in (ii), the Board held that it was an implied term of the engagement that the Surveyor should follow the Complainant’s lawful and reasonable request, that the Complainant’s request for the return of the Report was reasonable, and that the Surveyor’s failure to return it despite repeated requests amounted to professional misconduct.  In this respect, the Surveyor had not discharged his duties to his client with integrity and in accordance with the highest standard of business ethics as required by Rule 1.3 of the Rules of Conduct of the Hong Kong Institute of Surveyors.[3]

31.  In conclusion, the Board found the Surveyor guilty in respect of Charge 1(a) but dismissed Charges 1(b), (c), (d) and (e) and Charge 2.

32.  On 19 June 2023, the Surveyor wrote a letter of “mitigation” to the Board.

33.  Having read the Complainant’s submissions and the Surveyor’s letter, on 21 June 2023 the Board decided by way of sanction that the Surveyor be reprimanded and ordered that the reprimand be recorded on the register of authorised land surveyors against the name of the Surveyor.

The appeal

34.  Under section 27 of the Ordinance, any party to an inquiry by a Board who was dissatisfied with the decision or order of the Board in relation to the inquiry may appeal to the Court of Appeal.  The Court of Appeal may affirm, reverse or vary the decision or order of the Board appealed against.

35.  By his Amended Notice of Appeal, the Complainant has advanced a number of contentions divided into Grounds I (subdivided into (a) to (h)), II and III.  They will be discussed in turn below.  The Surveyor has not cross-appealed against the Board’s Decision.

36.  In terms of relief the Complainant seeks an order that the Surveyor be found guilty in respect of Charge 1(a) and that he be removed from the register of authorised land surveyor for such period as may be determined by this court.  Since the Board had already found Charge 1(a) established, the Complainant is in essence seeking to increase the sanction against the Surveyor for Charge 1(a) based on the particulars upheld by the Board and any additional particulars falling within Charge 1(a) that (according to the Complainant) the Board ought to have held to be established.

37.  We note that in his written submissions for this appeal, the Complainant has advanced submissions that raise certain new matters that are not covered by his grounds of appeal.  As mentioned below, we do not think that those matters should, in fairness to the Surveyor, be entertained.

Ground I(a)

38.  The Complainant contends that the Board failed to consider that this was the second time the Surveyor committed similar professional misconduct.  He had committed previous misconduct in a disciplinary case which also went to the Court of Appeal (see CACV 22/2011). A reprimand is not sufficient to reflect the seriousness of his repeated misconduct.

39.  In our view, in deciding on the appropriate sanction, the Board clearly had in mind the previous disciplinary matter of the Surveyor, for the Order actually recited that matter.  Accordingly we reject the Complainant’s contention that the Board failed to consider the matter. 

40.  As to whether, having taken this into account, a written reprimand is a sufficient sanction, the starting point is that a professional disciplinary tribunal such as the Board in this case is accorded by the court a margin of discretion in determining the appropriate sanction for any disciplinary offence found.  The court has always attached weight to the views of such a tribunal which comprises members of the profession who are particularly well-qualified to gauge the seriousness of the misconduct in question and what the corresponding sanction should be for upholding the standards of the profession and affording protection to the public, and will not interfere unless the sanction order is plainly wrong: see Registrar of the Hong Kong Institute of Certified Public Accountants v Leung Kam Man Victor (CACV 37/2016, 17 January 2017), §§11-16; Lie Han Ji v Registrar of the Hong Kong Institute of the Certified Public Accountants (CACV 265/2009, 9 March 2012), §56; Tang Wai Hung v Social Workers Registration Board [2022] HKCA 393, §42.

41.  In the present case, the misconduct consisted in the breach of an implied term, as found by the Board, requiring the Surveyor to comply with the lawful and reasonable request of the client for the return of the Report.  His failure to do so appears to have stemmed from his view that the Report was the firm’s property.  This is not a finding involving dishonesty of any kind, or negligence or misconduct in the substandard performance of survey work.  The Report was a document that the Complainant was himself able to and did obtain from the DSO.  In all the circumstances we do not think that a reprimand falls outside the range of tenable options open to the Board to adopt even taking into account the Surveyor’s previous record.  Accordingly, this ground of appeal fails.

Ground I(b)

42.  The Complainant contends that the Board wrongly relied upon the Surveyor’s failure to provide the Report to him as the sole ground for sanction.  In our view this depends on whether the Complainant can establish his other grounds of appeal and show that there was other misconduct established.  This ground therefore requires no separate discussion.

Ground I(c)

43.  This ground complains that the Board wrongly ignored the Surveyor’s professional misconduct in asking the Complainant to sign on the permission form on 21 November 2015 before the submission of the survey report to the DSO.  The Report was not in existence then and was only completed in July 2016.  In his written submissions the Complainant says that the Surveyor’s act of asking him to sign on the permission form was a “deliberate act of dishonesty” because the Report was not yet in existence at the time. 

44.  The short answer to this serious allegation, amounting to a charge of dishonesty, is that it was not mentioned in the Notice of Inquiry at all and as such wholly outside the scope of the inquiry.  In these circumstances it cannot be entertained by this court, whether as a separate allegation of misconduct or in the guise of a so-called aggravating factor. 

45.  Further, the Surveyor’s evidence was that it was his staff who asked the Complainant to sign the form as was the usual practice, and the Complainant’s evidence was that he read the form and did not see any irregularities and so he signed it.  As this allegation was not the subject matter of the inquiry, there was no evidence from any staff as to the explanation they gave the Complainant when he was asked to sign the form.  As can be seen from the form itself, the signature of the client is for the purpose of giving permission to the DSO to keep the submission and to distribute to third parties copies of the plans, survey report and other documents contained in the submission.  In the circumstances, even if the allegation were to be entertained, we would not be prepared to infer any dishonesty on the part of the Surveyor simply from the fact that the Report was not in existence at the time when the Complainant was asked to sign this undated form.

Ground I(d)

46.  This ground complains that the Board wrongly ignored the Surveyor’s professional misconduct in refusing to answer the questions in the Complainant’s letters dated 22 July, 28 July and 9 August 2021.

47.  The complainant’s letter of 22 July 2021 asked the firm to confirm when the Plan and Report could be returned to him.  It does not add anything to the finding of misconduct in the failure to provide the Complainant with the Report.  The firm actually replied the next day stating that the documents retrieved from the DSO would not be returned to the Complainant since the scope of the firm’s work was the submission of the relevant documents to the DSO for record and the submitted documents were its property. 

48.  The Complainant’s letter of 28 July 2021 stated, inter alia, that the Complainant had never received the Report and that the Plan showed an area of 245.42 ft², with a shortfall of 62.58 ft² compared to the area of 308 ft² stated in the CSO document. The Complainant asked for an explanation of the shortfall.  The firm replied on 6 August 2021 stating that it had completed the scope of works set out in 2016 and had withdrawn all the documents submitted to the DSO.  It reiterated that the documents voluntarily submitted to the DSO were the firm’s property and would not be turned over to the Complainant.  The firms stated that its task was “basically expunged” upon the successful withdrawal, and it would not make further comments or replies in the matter.  Accordingly, the firm did not reply to the Complainant’s further letter dated 9 August 2021 which asked for the return of the Report and Plan and an explanation of the shortfall in the surveyed area.

49.  At the hearing before the Board the Surveyor testified that his staff had explained the shortfall to the Complainant when the Plan was given to him (see pp 11, 12 and 35 of the transcript).  This, albeit hearsay, was evidence that could be considered by the Board (see section 24(1)(a) of the Ordinance) and was not denied by the Complainant so far as we can see from the transcript.  The Surveyor also explained that it was clear from the Report how and why the firm came to the lower figure.  It should further be noted that there was no written engagement, so that the precise duties of the firm in relation to the provision of an explanation of the shortfall were not clear.

50.  The Board clearly had in mind the Complainant’s letters of 28 July and 9 August 2021, to which it referred in its Decision at §20.  If the Board had actually rejected the allegation of failure to provide explanation, it would have been better if that had been specifically set out in its Decision.  But even if the Board had not reached a specific decision on that allegation, in the circumstances of this case the Board was in our view entitled to focus on the Complainant’s request for the Report, which would reveal how the lower figure was arrived at, without making a separate finding as to alleged misconduct in relation to the provision of an explanation for the discrepancy.  The request for explanation was part and parcel of the same correspondence.  Further and in any event, the Complainant has failed to persuade us that this court should itself make a finding of misconduct in this regard, given the state of the evidence as described above and the lack of inquiry into whether the Surveyor owed a specific duty to provide an explanation sought in correspondence four years after the engagement over and above what was stated in the Report. 

Ground I(e)

51.  This ground complains that the Board wrongly ignored the Surveyor’s professional misconduct and breach of statutory duty under reg 6 and 7 of the Land Survey (Disciplinary Procedure) Regulation in ignoring the Complainant’s “statutory demand” to produce the Report.

52.  Reg 6 and 7 of the Land Survey (Disciplinary Procedure) Regulation provide as follows:

“ 6. Documents to be furnished to Disciplinary Board and other party

Each party shall furnish to the secretary, not less than 10 days before the date of the inquiry, 2 copies of each document upon which the party intends to rely at the inquiry and shall at the same time furnish to the other party one copy of each such document.

7. Notice to produce

The complainant or the defendant may at any time give a written notice to the other party requiring that other party to produce any document alleged to be in the custody or under the control of that other party and which is relevant to the inquiry and, on that other party’s failure to produce the document, may prove the contents of the document by any alternative method.”

53.  Pursuant to reg 7, the Complainant gave written notice on 28 March 2023 to the Surveyor to produce the Report. The Surveyor did not respond.  There was however no allegation of breach of the Land Survey (Disciplinary Procedure) Regulation in the Notice of Inquiry.  It was not open to the Board to find any professional misconduct in that respect.  Reg 7 is a procedural provision intended to facilitate the conduct of disciplinary proceedings, not a provision prescribing standards of professional conduct.  Reg 7 merely provides that if the party requested fails to produce the document, the requesting party may prove the contents of the document by any alternative method.  Further, the Board had power under section 24(1)(c) of the Ordinance to require the Surveyor to produce the Report – being a document in his custody or under his control.  The Complainant did not apply to the Board for such an order, presumably because he had already obtained a copy of the Report by other means.  For all these reasons, this ground fails.

Ground I(f)

54.  This ground complains that the Board wrongly referred to the clause 5 exemption in the Code of Practice as the reason for the Surveyor not to follow clause 4(a) and 4(b) when he had never made any submission relying on clause 5.

55.  Clause 4(a) & (b) of the applicable version of the Code of Practice[4] provided:

“ 4. In order to maintain a standard practice for re-establishment of lot boundaries, all Authorized Land Surveyors are required to follow the general principles set out below in performing their lot boundary re-establishment work:-

(a) Follow the intention of grant – the re-established boundaries (in terms of position and dimension) and the resultant shape of the lot should not deviate materially from that as shown on the land grant document, save that part of the lot which might have been surrendered to or resumed by the Government;

(b) Adopt original occupation – the re-established boundaries should follow those surviving boundary features that are found or believed to have been in existence when the lot was first granted or when it (in case of a section) was carved out from its parent lot”.

56.  Clause 5 of the same Code of Practice provided:

“ It is understandable that there are circumstances under which an Authorised Land Surveyor will not be able to follow all the above general principles in a boundary re-establishment exercise. Therefore, it will not be regarded as a non-compliance with the requirements of this Code of Practice if an Authorised Land Surveyor can demonstrate that in the performance of his boundary re-establishment work, he has considered following the above principles but there are circumstances preventing him from doing so.”

57.  It was in Charge 2 that the Surveyor was said to have breached clause 4(a) of the Code of Practice.  The Board dismissed Charge 2 and the Complainant does not appeal against this dismissal. In our view this ground is therefore not open to him. 

58.  In any event this ground has no merits.  The Surveyor gave his explanation for finding the area to be 245 ft² at the hearing before the Board.  He said, among other things:

“ … the survey[ed] area is less than the registered area, is based on the ground evidence.”[5]

“ … my staff also explained to [the Complainant] why the area is less than the registered area, because we based on the ground evidence. And this is the final decision we made. We have no way to extend the lot to another lot, because there was an occupation already, over 50 to 60 years old. Although he said probably this is government land and this is a squatter, no registration, nobody knows. We cannot do any encroachment on the other house. So maybe other surveyor did it, I don’t know why. But I also read the report, and I’m not really agree to his final result. This is – I think is a boundary problem, it’s not the disciplinary problem.”[6]

“ So the subject lot is in the middle one, is lot 1211B. So it’s left-hand side, is a lot 2015, and the right-hand side is another house about 50 to 60 years old. So this is the ground condition.”[7]

“ So it reflected on our plan, the subject lot is between two old houses. This means one opinion is just follow the old plan and a ground condition and do the survey and result, as in my plan. Another one is just like another surveyor, extend to the right-hand side. Because right-hand side have no lot names. And make 308 square feet. But I won’t do that.

You cannot do a survey and make some boundary dispute with a neighbour lot. You encroach 65 – 62 square feet in the right-hand side. And how do you know what is the status of that house? It may be some missing lot. One day it may be a villager goes to the DSO and asks, ‘I live here over five decades and my lot should be blah, blah, blah, and I am applying for a missing lot relocation.’ So this will be a potential boundary dispute. I won’t do that.”[8]

“ And the best evidence showing on ground right now is an old building on the left-hand side and also another old building on the right-hand side, over half a century. This is the only thing we can find. And also, from the government cadastral sheet, they show the area, the location is just the rectangular upside down, just like that. And we have to respect the existing boundary features.”[9]

59.  The Board said this in its Decision at §18:

“ … At the hearing on 26 April 2023, the Defendant gave oral evidence that he confirmed and reiterated that the 245 figure was the correct figure and he arrived at this figure based on his professional judgment having regard [to] the circumstances surrounding the Lot. The Defendant explained aurally at the hearing that in arriving at the 245 figure he took into account existing structures or space being occupied by persons other than the owner of the Lot. In other words, the Defendant was relying on Regulation 5 exemption not to follow the general principles set out in Regulation 4 of the Code.”

60.  As shown in the transcript, the Surveyor had explained the concerns he had arising from the existence of two houses in the vicinity of the Lot in answering why he did not simply adopt the registered area of 308 ft².  It is true that the Surveyor did not expressly mention clause 5 of the Code of Practice, but it does not follow that the Board erred in holding that the Surveyor was in effect relying on clause 5 to explain why he did not follow all the principles in clause 4 of the Code of Practice.  The Surveyor did in his evidence refer to circumstances under which he considered he could not follow the CSO document.  As provided in section 23(5) of the Ordinance, the Board may have regard to any code of professional conduct or practice currently in use by the Hong Kong Institute of Surveyors.  Accordingly we do not think the Complainant has made out any ground for impugning the Board’s Decision in this respect.

Ground I(g)

61.  This ground complains that the Board wrongly interpreted the case as a “dispute” on the area of the Lot.  The Complainant says that the area of the Lot was clearly specified in the CSO document and was also confirmed by the Lands Department in its letter dated 20 May 2021, and that the burden was on the Surveyor to prove to the Board that when certifying the area to be 245 ft², he did not commit professional misconduct.

62.  This complaint was the subject matter of Charge 2.  The Board dismissed this charge and the Complainant does not appeal against this dismissal.  This ground is therefore not open to him. 

63.  In any event, this ground has no merits.  It is true that the CSO document recorded the area to be 308 ft² and the DSO’s letter dated 20 May 2021 also stated that the “registered area” of the Lot was 308 ft². However, this does not show that the Board was wrong to refer to there being a “dispute” about the area that should be certified.  The fact was that the Complainant said that the Surveyor should have certified an area of 308 ft² and the Surveyor maintained he was not wrong in having certified the area to be 245 ft².  The Report explained the Surveyor’s methodology and drew attention to the fact that the surveyed area was about 5.8 m² less than the registered area.

64.  It should also be noted that clause 4(c) of the Code of Practice provided:

“ Respect existing boundary features – subject to sub-paragraph (b) above, the re-established boundaries should normally follow the existing boundary features (e.g. field bunds, fences, walls, hedges, ditches, channels etc.) if the distance between these features and the relevant boundary line as shown on the grant / assignment / division plan is within the graphical accuracy of that boundary line. This notwithstanding, in case the exact dimensions of the subject lot are shown on the relevant grant / assignment / division plans, such dimensions should be respected unless they are proved to be wrong”.

65.  There is nothing in the materials before this court sufficient to show that the Surveyor was wrong in surveying the area to be 22.8 m² and furthermore that he was negligent or had misconducted himself in a professional respect in concluding that the surveyed area was 22.8 m².

66.  The Complainant is wrong in asserting that the burden of proof lay on the Surveyor.  In defending the disciplinary charges brought against him, the Surveyor did not bear any burden of showing that he did not commit professional misconduct.

Ground I(h)(i)

67.  This ground complains that the Board failed to note that the Surveyor’s duty as a land surveyor was to re-establish the boundary of the Lot (see section 28 of the Ordinance and clause 4 of the Code of Practice).  It is said that the Surveyor had never been authorised expressly or impliedly to “change” the area of the Lot.

68.  In our view there is no substance in this ground.  As mentioned in the Report, the Surveyor did seek to re-establish the boundaries of the Lot.  The method he used was specified there, leading to a result at variance with the registered area.  The Board stated in its Decision that “the Complainant failed to prove on balance of probabilities that the Defendant had committed any disciplinary offence under the Ordinance by stating the figure of 245 instead of 308 in the SRP”.  There is no question of the Board failing to note the Surveyor’s duty.

Ground I(h)(ii)

69.  This ground complains that the Board failed to note that it was the Surveyor’s duty, if the re-established lot boundary could not match with the land grant record (in particular, the area), to explain to the Complainant the reason therefor and seek his instructions.  It is said that the Surveyor failed to do so when preparing the Report and failed to do so even after repeated requests by the Complainant in his letters dated 22 July, 28 July and 9 August 2021.

70.  This ground essentially duplicates ground I(d) which has been discussed and rejected above.

Ground II

71.  This ground complains that the Board’s decision is unsafe and unsatisfactory because one of its members, Mr Ching Siu Tong, who is himself an authorised land surveyor, did not ask the Surveyor any question during the inquiry and did not use his professional knowledge to assist the Board in performing its duty in the inquiry.  His capability and integrity are called into question.

72.  In our view this ground is wholly baseless.  A member of the Board is not bound to ask questions of the parties or a specific party.  The fact that he did not ask questions does not in any way imply that he did not properly participate in the hearing and in the Board’s deliberations.

Ground III

73.  This ground contends that the Board erred in making no order for costs against the Surveyor even though his professional misconduct was established.

74.  The Complainant relies on section 24(5) of the Ordinance, which provides:

“ A Disciplinary Board conducting an inquiry may recover from the authorized land surveyor who is the subject of the inquiry the cost of any field inspections incurred for the verification of any survey and any other incidental or related costs incurred and such costs shall be recoverable from the authorized land surveyor as a civil debt.”

75.  However, as submitted on behalf of the Surveyor, this provision is drawn in specific terms and concerned with “the cost of any field inspections incurred for the verification of any survey and any other incidental or related costs incurred”.  It does not expressly refer generally to the costs of the disciplinary proceedings.  There was no field inspection in this case.  The Complainant has not been able to point to any other basis for the Board to award costs against the Surveyor.  The Complainant has referred to the costs regimes in the disciplinary proceedings of other professions, but they provide no assistance in ascertaining the statutory powers of the Board in this case.  This ground of appeal therefore also fails.

Conclusion

76.  For all the above reasons, we have come to the conclusion that none of the grounds of appeal has been made out.  The appeal is accordingly dismissed.

77.  We heard argument on costs on a contingent basis at the hearing.  We do not accept the Complainant’s submission that this appeal can be characterised as public interest litigation – it was simply the Complainant’s challenge against the order of the Board in an attempt to obtain a more severe form of sanction against the Surveyor.  This is not an appropriate case in which to lay down any “guidelines” for sanctions as the Complainant has suggested.  The Complainant has made numerous allegations and complaints in this appeal that are devoid of merits.  It should also be borne in mind that the Complainant had specifically made submissions insisting on the Board’s attendance at the hearing.  In all the circumstances we have come to the view that costs should follow the event so that: (1) the Complainant should pay the costs of the Surveyor and of the Board, except that the Surveyor should be entitled to the cost of only one counsel and that in relation to the supplementary written submissions dated 26 January 2024 there will be no order as to costs; and (2) there will be no order as to costs as between the Surveyor and the Board.

[1]   Decision, §10.

[2]   Decision, §§18 – 19.

[3]   Decision, §20.

[4]   Fourth Edition (Revised) dated December 2006.

[5]   Page 11H of the transcript.

[6]   Page 12B-E of the transcript.

[7]   Page 18C of the transcript.

[8]   Pages 19S-20B of the transcript.

[9]   Page 30D-G of the transcript.