Leung Siu Kwong , Christopher v. An Inquiry Committee
Read the full judgment text of CACV 254/1995 on BabelCite. This Court of Appeal judgment was delivered on 25 April 1996.
1. This is an appeal by a registered architect against an order of an Inquiry Committee dated 18 September 1995, made following disciplinary proceedings brought against him under Part IV of the Architects Registration Ordinance. The order is as follows:
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IN THE COURT OF APPEAL 1995, No. 254 Headnote Disciplinary proceedings against registered architect under Part IV Architects Registration Ordinance - Appeal to Court of Appeal by architect under s29(1) of the Ordinance - Procedural unfairness by Inquiry Committee - No findings of fact - Inquiry Committee found misconduct when such misconduct has not been alleged in the charge. Held (Court of Appeal): Appeal allowed and determination of Inquiry Committee quashed. IN THE COURT OF APPEAL 1995, No. 254
-------------------- Coram: Hon Litton, V.-P., Godfrey and Ching, JJ.A. Date of hearing: 29 March 1996 Date of handing down of judgment: 25 April 1996 ---------------------- J U D G M E N T ---------------------- Litton, V.-P.: Introduction 1. This is an appeal by a registered architect against an order of an Inquiry Committee dated 18 September 1995, made following disciplinary proceedings brought against him under Part IV of the Architects Registration Ordinance. The order is as follows:
2. The appeal comes to this court pursuant to section 29(1)of the Architects Registration Ordinance. The legislative framework 3. In the light of what has occurred in this case, it is necessary to examine briefly the legislative framework under which disciplinary proceedings against registered architects are brought. 4. Section 21(1)(a) - with which this case is concerned - provides:
5. Sub-section 3 provides that when the Registrar receives a complaint concerning a disciplinary offence, he shall submit the facts to two members of the Architects Registration Board for the purpose of determining (in consultation with the Registrar) whether the complaint should be referred to the Board. 6. Section 22 of the Ordinance then provides:
7. Disciplinary Rules have been made by the Board to regulate proceedings. 8. Under the Rules, the body set up under s21(3) of the Ordinance is called a Preliminary Committee. Part II of the Disciplinary Rules regulates the conduct of the Preliminary Committee. Rule 15(iii) states:
9. Thus, it can be seen that an essential step in the disciplinary process is the formulation of the charge: This means, by its very nature, a charge with sufficient particulars to enable the registered architect to know the case he has to meet. No formality is required. 10. Part III of the Disciplinary Rules governs the conduct of the proceedings by the Inquiry Committee. 11. Rule 20 provides that within 14 days of the constitution of the Inquiry Committee, the Committee shall hold a meeting at which directions for the future conduct of the matter shall be given. The registered architect shall be entitled to be present at such meeting and to make submissions. Such directions may include:
12. Rule 25 empowers the Inquiry Committee to amend any charge which needs amendment. Notice of any proposed amendment must be given to the registered architect by the Registrar. 13. At the conclusion of the proceedings, the Committee is required, among other things to:
14. Where an Inquiry Committee makes a finding that a disciplinary offence has been committed, the Registrar is required by s26(1) of the Ordinance to forward the decision and any order proposed to be made by the Inquiry Committee to the Board for review. The Board must then appoint three of its members to sit with the chairman as a Review Committee to review the decision of the Inquiry Committee. Under s26(5) of the Ordinance, the Inquiry Committee is required to comply with the directions and recommendations, if any, of the Review Committee. The Court's approach 15. Before I proceed to consider the circumstances of this case, a point must be emphasised: Disciplinary proceedings against a registered architect under Part IV of the Ordinance take place within a professional context. An Inquiry Committee, composed of members of The Hong Kong Institute of Architects, is not a court of law. The Disciplinary Rules, made to regulate disciplinary proceedings, are not carved in tablets of stone. They are there to ensure efficiency and fairness in the conduct of proceedings. Rule 28(i) of the Rules leaves considerable scope for the exercise of discretion by the Committee in the conduct of its own proceedings. Rule 28(i) states:
16. Rule 28(ii) goes on to say:
17. What it boils down to is this: The Court of Appeal, in entertaining an appeal under s29(1) of the Ordinance, must not be too rigid in its approach, and should be slow to criticise the manner in which the proceedings have been conducted: accepting that the exercise of discretion concerning procedural matters is generally best left to the judgment of the Inquiry Committee. Breach of the Disciplinary Rules does not necessarily mean that the proceedings have not been conducted fairly: though, where this happens, it will naturally cause this court to scrutinise the proceedings with even greater care. It is only where this court is satisfied that basic requirements of fairness have not been observed that it will interfere. Background facts 18. The disciplinary proceedings against the appellant originated with a letter dated 24 April 1991 from the Television and Entertainment Licensing Authority (TELA). The letter, addressed to the Registrar of the Architects Registration Board, states:
Complaint of misconduct or neglect in a
19. Accompanying the letter of 24 April 1991 is a document headed "Brief Facts of Case concerning misconduct or neglect in a professional respect against Mr. LEUNG Siu-kwong, Authorised Person - Architect", a sample form for applying for an amusement game centre (AGC) licence and guidelines for the grant of AGC licences. 20. The guidelines indicate that whenever an applicant applies for an AGC licence, the application must be accompanied by copies of layout plans of the proposed premises certified by an authorised person showing four things:
21. In essence, what the complaint amounted to this was this:
22. On 12 May 1992 TELA lodged a further complaint relating to 11 more cases where the machines and the spaces in between, when added up, were greater than the relevant side. In the summary accompanying the letter of 12 May 1992, the discrepancies in some cases were minute: for instance, in one case it amounted to no more than 20mm, over the wall-to-wall measurement of 15,600mm. In some other cases, it was considerable: for instance, 1,300mm over the wall-to-wall measurement of 26,100mm. 23. On 18 July 1992 yet another complaint was lodged relating to two further cases where, as the letter stated, "the nature of the inaccuracy in respect of the layout plans is different from those submitted ... previously." The charge 24. It would appear that the Board took a considerable time to process the complaints because it was not until 25 June 1993 that the appellant was told that disciplinary proceedings were on foot. There was only one charge against him, worded as follows:
25. Accompanying the letter of 25 June 1993 was "a copy of the complaint": That is, the letter of 24 April 1991 and its enclosures, the letter of 12 May 1992 and letter of 18 July 1992, all from TELA. Hearing of the charge 26. The first meeting of the Inquiry Committee was held on 9 July 1993. The chairman stated that the purpose of the meeting was to give directions for the future conduct of the hearing. The minutes of the meeting then record as follows:
27. Pausing here, it is important to note the background giving rise to TELA's original complaints, in order to appreciate the full flavour of the appellant's case. Back in September 1990, three licensing officers of TELA, together with a number of other persons, were arrested for corruption offences. One of those arrested was Mr Wong Siu-tat, a draftsman employed by the appellant. The licensing officers of TELA pleaded guilty and Mr Wong Siu-tat was subsequently found guilty after trial. Those cases involved the falsification of applications for AGC licences and of the layout plans which accompanied them. 28. As a member of his own office staff was involved in those crimes, access to the appellant's office documents by the conspirators obviously could not be ruled out. The appellant's concern over the authenticity of his own signature and the "dimensional details as shown in the plans" was plainly not fanciful. 29. The Inquiry Committee, after noting Mr Leung's concern, proceeded to give directions in accordance with Rule 20 of the Disciplinary Rules as follows: By 13 August 1993, the appellant should submit his "written defence submission or documents that he intended to rely on" and to inform the Registrar of the names of his witnesses. The second meeting of the Inquiry Committee 30. The second meeting was held on 31 August 1993. 31. It is worth emphasizing at this point that the appellant faced only one charge, namely, that "a series of discrepancies with respect to dimensions shown on plans certified by [him] had arisen": as particularised by the letters of 24 April 1991, 12 May 1992 and 18 July 1992 from TELA. 32. It is clear from the minutes of the second meeting that the complainant's tackle was then not in order. 33. Paragraphs 2 and 3 of the minutes read:
34. Pausing here, it is difficult to see how, in fairness to the appellant, he could have been asked there and then, in the middle of the hearing, to "verify" the documents produced by Mr Lau, senior licensing officer of TELA. 35. Para 4 of the minutes states that the meeting proceeded to mark the "agreed documents" for use at the hearing with reservations noted on a number of documents. Looking at the list of "reservations" it is clear that many of the documents relied on by the complainant in substantiation of the charge were not in order. A sample from the minutes would suffice:
36. The minutes then proceed to note:
Further progress of the case 37. Having regard to what subsequently happened in the disciplinary proceedings, it is necessary to look with care at what occurred between the second and third meeting of the Inquiry Committee. On 5 October 1993 the appellant wrote a letter to TELA which stated:
38. On 11 November 1993 TELA wrote to the Registrar in response to the appellant's letter of 5 October 1993. This evoked the following response from the appellant by letter dated 19 November 1993.
Re: Complain against Registered Architect - Mr. LEUNG Siu-kwong
39. On 14 December 1993 TELA, in response to the appellant's letter of 19 November 1993, wrote to the Registrar to the effect that all material used in support of the complaint were "genuine office records". This was hardly addressing the appellant's concern: namely, whether the layout plans containing the alleged "discrepancies" might have been tampered with in some way and whether the signatures said to be that of the applicant were genuine. TELA's "genuine office records" could turn out to be false - particularly having regard to the criminal background, involving TELA licensing officers. On 23 December 1993 the appellant wrote again to the Registrar to this effect:
40. Pausing here, it would seem that the appellant's position could not have been clearer: Having regard to the fact that the complainant had had a false start in the proceedings, and part of the written material put forward to substantiate the charge could not be relied upon, the appellant was insisting that the case against him be strictly proved. 41. In the light of this, the way the third meeting of the Inquiry Committee was conducted is unfortunate. The Third Meeting of the Inquiry Committee 42. The third meeting took place on 4 March 1994. Para 1 of the minutes reads:
43. In this regard, it is relevant to recall what TELA in its letter of 11 November 1993 had prior to the third meeting said to the Registrar:
44. In response to this, the appellant had repeatedly said that he challenged all the plans. The Registrar knew this. 45. In these circumstances, whilst it may have been justifiable for the Inquiry Committee to attempt to use the third meeting to narrow the area of dispute, fairness required that the Committee should proceed cautiously, in seeking the appellant's "agreement" with regard to the authenticity of documents. 46. Para 3 of the meeting records as follows:
47. Pausing here, it seems clear that the chairman, quite rightly, was not seeking to pin down the appellant there and then to a formal agreement: The matter of authenticity was to be dealt with later. 48. The meeting appears to have then proceeded with the "verification" exercise. At that stage, of the original 33 cases, 3 had been withdrawn by TELA. In relation to the remaining 30 cases doubts were cast on the signatures and chops of some of them; but in relation to three cases the minutes note the appellant as indicating that on examining the original documents his signature "appeared" authentic. 49. This process must have taken a long time because, before it was completed, the chairman intervened and proposed that the "verification" of the rest of the documents should proceed as a separate exercise with Mr Tse of TELA and the "agreed outcome should then be reported back to the Inquiry Committee as soon as practicable". 50. It would seem that any semblance of conducting a hearing on the charge as laid before the Committee disintegrated at this point. The complainant had by no means concluded its case; yet the appellant was "requested to brief the meeting on his normal office procedures in processing applications for Amusement Game Centre Licences on behalf of his clients". He was further asked whether he had instructed his staff to check whether the building was a legal structure and was structurally sound with suitable means of fire escape: matters which went far beyond the scope of the charge. 51. The meeting concluded as follows:
Solicitors came on the scene 52. It would appear that, upon the conclusion of the third meeting, the appellant (not surprisingly) consulted solicitors. Under cover of a letter dated 6 April 1994 Messrs Alexander Tsang & Co., on the appellant's behalf, made a "submission for no case to answer", in the course of which, with reference to the ICAC investigations, they said:
53. In these circumstances, no steps were made to arrange a separate meeting with Mr Tse of TELA to "continue the verification" of the documents. The Fourth Meeting of the Inquiry Committee 54. As is plain from what had transpired before, the cardinal issue before the Committee, left unresolved, was the extent to which the Committee could fairly rely upon the documents produced by the complainant. If the members of the Inquiry had themselves examined those documents and, from their own examination, had satisfied themselves that every signature was authentic and no tampering had taken place with regard to any of the layout plans, this is not apparent from the minutes produced. The Committee appears to have proceeded upon a presumption of regularity - in circumstances where, at least in some cases, there were real grounds for thinking that irregularity had occurred. 55. It appears that at the fourth meeting Mr Tse, the TELA representative and Mr Lau, an ex-TELA officer, both testified. They were plainly not testifying as experts on suspect documents. The minutes read:
56. It is clear from this that neither Mr Tse nor Mr Lau were taking personal responsibility for the authenticity of the documents: They were merely saying that they were untouched and genuine according to office records. 57. It would appear from the minutes that, at some stage during the meeting, the focus changed from the question of authenticity of the documents produced by the complainant to the way in which the appellant managed his office: a matter which plainly was not within the scope of the charge. Para 8 of the minutes read:
58. The fact that the Inquiry Committee was reluctant to deal with the appellant's concern is apparent from para 9 of the minutes which read:
The determination 59. The fourth meeting was the final hearing of the proceedings against the appellant. As Mr Benjamin Chain, counsel for the appellant rightly remarks, it is difficult to determine from the minutes whether the Committee ever went beyond the stage of preparatory hearings. The alleged "series of discrepancies with respect to dimensions shown on plans" allegedly certified by the appellant were simply not addressed. Nevertheless, the Committee proceeded on 30 August 1994 to a determination. 60. Despite the requirement of rule 30(ii) of the Disciplinary Rules, there were no findings of fact in the written determination. The first 8 pages of the written document simply repeated the charge (such as it was) and reiterated the contents of the minutes of the four meetings. The concluding paragraph of the written document reads:
61. The Committee found the appellant guilty on all 30 cases. 62. The finding of professional misconduct in para 7.1(ii) is astonishing. The Committee proceeded to find the appellant guilty of misconduct for : (a) failing to "show that he had kept proper records", (b) failing to comply as an Authorised Person with all requirements noted in TELA's application form and (c) failing to supervise activities within his office "consistent with the requirements of TELA and that of a professional office", when he had not been charged with any of these matters. As to para 7.1(iii), the appellant was, in effect, being condemned for his lack of "co-operation" with the Committee; and the finding of guilt in para 7.1(iv) is an echo of the conclusions in para 7.1(ii). The appellant was given no opportunity whatever to meet any of those matters. 63. Following a letter of protest by the appellant, the Board forwarded to the appellant a copy of the Committee's decision, to the effect that his name should be removed from the Register for six months, suspended for two years. 64. By letter dated 30 September 1994 Messrs Alexander Tsang and Co. wrote to the Board asking for (among other things) the Committee's findings of fact. In response, the Board sent to the appellant the Committee's purported findings of fact: These were no more than a reiteration of the minutes of the four meetings. It is not possible to extract a single finding of fact made by the Committee from those minutes. The Review Committee 65. Pursuant to s26(1) of the Ordinance, the Registrar forwarded the Inquiry Committee's decision and the proposed order to the Board for review. Not surprisingly, the Review Committee, on 3 March 1995, resolved to remit the Inquiry Committee's decision and its proposed order back to the Committee for reconsideration. Among the reasons given by the Review Committee for this decision is the fact that the appellant had never been charged with misconduct on account of (a) failing "to show that he had kept proper records; (b) failing to comply as a Authorised Person with requirements in TELA's application forms and (c) failing to supervise activities with his office. The final determination 66. With such fundamental defects in the proceedings and in its determination up to this point having been revealed, one would have thought that the Inquiry Committee would have paused and addressed its mind to the allegations as charged: That is, the "series of discrepancies with respect to dimensions shown on plans" certified by the appellant: What plans, what dimensions, what discrepancies? Nothing suggests that these questions were directly addressed. 67. After reconsideration as required by the Review Committee, the Inquiry Committee concluded that, of the original 30 cases, no disciplinary offences were shown to have been committed in respect of 27. The Committee found that disciplinary offences were proved in relation to only 3 of those cases: Case No. 1 (Ref. No. T-635), Case No. 2 (Ref. No. T-2304) and Case No. 33 (Ref. No. T-4180). 68. Despite the fact that only three out of the 30 cases were finally proved, the Committee confirmed the original order of removal from the register for a period of six months, suspended for two years. The gravity of the offence, in the eyes of the Committee, remained the same. It is this Order, dated 18 September 1995, which comes to this court on appeal. 69. The written determination of 18 September 1995 is in form similar to that of 30 August 1994. There are no findings of fact. Under the heading "The Facts" one simply finds a reiteration of the minutes of the various meeting of the Inquiry Committee. As to the reasons for the determination, these are to be extracted from the part of the document headed "Analysis" which states:
70. As can be seen from the "Analysis" the Committee was no longer concerned with the alleged series of discrepancies in the plans certified by the appellant. That was the offence with which he was charged. Despite the earlier admonitions of the Review Committee, the Inquiry Committee's focus nevertheless shifted from the charge as formulated to the appellant's behaviour generally: As an office manager and as regards the manner in which he conducted his case. 71. The written determination is wholly silent as to the only matter with which the appellant was charged and convicted: namely, in what regard there were discrepancies in dimensions in the plans certified by him, in each of the three cases on which he was found guilty. It is not surprising in these circumstances that there are no findings of fact relating to this issue. The charge 72. It would be convenient at this point to revert to the charge brought against the appellant. 73. At the hearing, we invited counsel for the Inquiry Committee to formulate, in relation to the only remaining three cases, the precise "discrepancies with respect to dimensions shown on plans" certified by the appellant which justified the finding of guilt. Counsel was unable to do so. This is not surprising. 74. In relation to Case No. 33 (Ref No. T-4180) the "discrepancy" - if it be such - did not relate to the dimensions shown on the layout plans, but to the configuration of the premises concerned: shop No. 50 on the ground floor of 143 Kweilin Street, Shamshuipo. Two certified plans were produced. In the first, shop No. 50 is rectangular; in the second plan shop No. 50 is L-shaped. It appears that, at some stage, the premises were enlarged to incorporate an adjoining space. If there was a misdescription, it related to the L-shaped premises: that is, whether it was properly described as shop No. 50, the licensee having at some stage incorporated an adjoining space, and enlarged shop No. 50. It is difficult to see how - assuming the signature on the plans to be genuine, and the plans not tampered with - the appellant could be guilty as charged. 75. In relation to case No. 1 (Ref. No. T-635) the "summary of facts" produced by way of particulars of the charge seems to raise three separate matters of complaint, one of which - the removal of two toilets - falls wholly outside the charge. 76. The remaining case, case No. 2 (Ref. No. T-2304) is one of the original 19 cases referred to the Board by TELA. However, the discrepancy in this case is minute: less than 2%. If the Committee had properly directed its mind to this case as charged, the Committee could well have reached the conclusion that the discrepancy is insignificant and called for no finding of guilt. Conclusion 77. There are, in my judgment, three fundamental grounds for impeaching the Committee's determination: (i) procedural unfairness; (ii) there was no sufficient proof that the documents in cases No. 1, 2 and 33 were genuine and untouched; (iii) the charge was not sufficiently clear. These three points, to an extent, merge. 78. From the history of the proceedings outlined above, it is beyond doubt that there has been no due inquiry by the Committee into the matter with which the appellant was charged. 79. Whilst, in ordinary circumstances, an Inquiry Committee may be entitled to take a robust view and rely upon the apparent regularity of original documents, this was not an acceptable approach in the circumstances of this case. The Committee's own finding, in dismissing 27 out of the 30 cases, is tacit acceptance of the appellant's case that, overall, there were grave doubts concerning the authenticity of the documents: namely, whether they might have been tampered with, whether signatures have been forged etc. In these circumstances, to have required the appellant to examine the documents at the actual hearing, and to have then taken the appellant's statement that a particular signature "appeared genuine" as a binding admission was grossly unfair. In normal circumstances it would be proper to say, in effect, to a registered architect: "You must have tracings in your office of your own drawings. You are in the best position to tell if the drawings now produced in evidence have been altered. They look untouched. If you assert otherwise, prove it". But this was not the course taken by the Committee. The Committee had, at the third meeting, expressly left "the matter of authenticity [to] be dealt with later": It was never in fact later addressed, yet the finding of guilt followed as if it had. The Committee did not, apparently, take upon itself the responsibility of scrutinizing the plans and satisfying itself that the documents were genuine and "untouched": It simply relied upon the appellant's admission that the signatures on the documents in Case No. 1, 2 and 33 "appeared authentic" to convict, and dismissed the rest of the 30 cases. The Committee could not have relied upon Mr Tse and Mr Lau's assertion that all the documents were genuine and untouched "according to office records": for, if it had done so, it would presumably have convicted on the remaining 27 cases as well. 80. In these circumstances, quite apart from the procedural unfairness inherent in requiring the appellant to "verify" the signatures in the presence of the Committee, I am of the view that the so-called "admission" itself, in relation to Cases No. 1, 2 and 33, is not a sufficient basis for finding that the plans in those 3 cases were untouched. On this ground alone, I would have allowed the appeal. 81. As regards the formulation of the charge, the Committee has powers to amend the charge or to cause it to be amended by the complainant. When 27 out of the 30 cases have been dismissed and the matter boiled down to the examination of three cases only, the Committee could and should have asked for the charge to be particularised with reference to those three cases. Their minds would then have been focused upon the question of discrepancies - and the Committee would have seen that, by that stage, there was virtually no case for it to consider. 82. In my judgment, there has been such irregularities in the proceedings and breaches in the basic rules of fairness that this appeal must be allowed with costs and the decision of the Inquiry Committee dated 18 September 1995 must be quashed. 83. I would so order. Godfrey, J.A.: 84. I agree that, for the reasons given by Litton V-P, this appeal must be allowed, and the order dated 18 September 1995 set aside. Ching, J.A.: 85. I am in agreement with the judgment of Litton V-P, and the Order he proposes.
Representation: Mr Benjamin Chain (M/S C.M. Li, Chow, Pang & Chan) for Appellant Mr Robert Whitehead (Attorney General's Chambers) for Respondent |