Leung Siu Kwong, Christopher v. Architects Registration Board

CACV000027/1995

IN THE COURT OF APPEAL

1995, No. 27
(Civil)

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Coram: Hon Litton, V.-P., Godfrey, J.A. and Keith, J.
       in Court

Date of hearing: 5 May 1995

Date of judgment: 5 May 1995

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J U D G M E N T

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Litton, V.-P.:

1. The appellant is an architect. The respondent is the Architects Registration Board, a body corporate constituted under section 4 of the Architects Registration Ordinance, Cap. 408. Part of the functions of the Board is to maintain a register of registered architects: see section 8A. Under s16(2) a registered architect must apply annually for renewal of registration. By s31(1)(h) it is an offence for a person to use in connection with his profession the description "architect" if he is not registered.

2. What happened in this case was this. On 18 October 1994 the appellant applied for renewal of registration in accordance with the procedure set out in s16(2). By letter dated 26 October 1994 the Board notified the appellant that his application was refused. Section 16(5) empowers the Board to reject applications for renewal in these terms:

"(5) The Board may reject an application for renewal if it is satisfied that the applicant does not continue to comply with the requirements for registration set out in section 13."

3. By s29(1) anyone aggrieved by a decision made in respect of him under s16(5) may appeal to this court. Hence this appeal before us.

The issue on appeal

4. To appreciate the issue raised in this appeal, it is necessary to state one additional fact. It is this. At the time of the application for renewal, 18 October 1994, the appellant was involved in disciplinary proceedings under Part IV of the Ordinance. An Inquiry Committee had on 27 September 1994 made a proposed order to the effect that the appellant's name be removed from the register for six months but suspended for a period of two years.

5. Under s26 such an order is subject to confirmation by a Review Committee which, at the date of the appellant's application for renewal of his registration, had not yet met. The effect of all this means that, at that date, the appellant was not precluded from having his name on the register of registered architects for 1995.

The Board's error

6. It is now conceded by Mr Whitehead, counsel for the Board, that in entertaining the appellant's application in October last year the Board had misunderstood its statutory functions and powers. This is what happened. In response to the appellant's application for renewal, the Board in its letter of 26 October 1994 said as follows:

"Dear Mr. Leung

Please be advised that your application for renewal of registration cannot be accepted at this time under Section 13(1)(d) of the Architects Registration Ordinance which stipulates that 'The Board shall not register a person as a registered architect unless he is not the subject of an inquiry committee or a disciplinary order under Part IV which precludes him from being registered under this Ordinance.'

In this connection, we would like to return herewith your application form and cheque.

Yours sincerely,

Registrar"

7. At the date of that letter there was no disciplinary order against the appellant which precluded him from being registered under the Ordinance. He was, it is true, at that time the "subject of an inquiry committee" in terms of s13(1)(d) and, as a matter of discretionary powers, the Board could have rejected the application on that ground if they had thought it proper to do so. But, as is apparent from the letter of 26 October 1994, and as conceded quite properly by Mr Whitehead, the Board did not exercise any discretion. The Board erroneously thought that by the operation of law the appellant was precluded from being registered as an architect.

8. The Board was also wrong in this respect. The proposed order put forward for confirmation by the Inquiry Committee in no way precluded the appellant from being registered since the proposed order, if confirmed, would have been suspended: that is to say, not to take effect if, in the intervening two years, the appellant committed no other disciplinary offence. I should add in parenthesis that it would have been better if the Inquiry Committee had set out in the proposed order what were the precise conditions of the suspension; the conditions should not have been left to be implied.

The order this court should make

9. Our powers are derived from section 29(2) of the Ordinance which reads:

"(2) The Court of Appeal may affirm, reverse or vary the decision appealed against."

10. Plainly, we should exercise our powers to reverse the Board's order: that is to say, to set aside the decision of the Board, communicated by the letter of 26 October 1994, rejecting the appellant's application for renewal.

11. Mr Chain, counsel for the appellant, asks us to go further. He says that we should order that the appellant's application for renewal be allowed. In my judgment this court cannot in the circumstances of this case go so far. The responsibility for entertaining applications for renewal rests with the Board. We are unaware of what other circumstances there might be relevant to the exercise of discretion under s16(5). All that we can say in this case is that, by the Board's rejection in October 1994, it had erred in law and misunderstood its powers. Whether there are other circumstances which might legitimately have empowered the Board to reject the application is not known to us. However, I would add that the Board should now set about its task of entertaining the application as soon as possible, having wrongfully caused the appellant's name to be removed from the register for over four months. The form of the order we make, consequent upon our decision, needs careful drafting. As to this I have had the benefit of seeing a draft proposed by Godfrey, JA with which I agree. I would therefore allow this appeal and make an order in terms of Godfrey, JA's draft.

Godfrey, J.A. :

12. I agree, for the reasons given by my Lord, the Vice President, that this appeal must be allowed. As he has indicated, I have prepared a draft of the order which, subject to any observations of counsel, I propose this court should make. The order should read as follows:

"UPON READING ......

AND UPON HEARING ......

AND this Court being satisfied that on a true construction of s.16(5) of the Architects Registration Ordinance, Cap. 408 and in the events which happened the Respondent Architects Registration Board (the Board) had power to accept or reject the Appellant's application for renewal of his registration under the Ordinance notwithstanding that the Appellant was the subject of an inquiry committee and that the decision of the Board communicated to the Appellant on 26 October 1994 refusing to accept the said application on the ground that the Board had no power to entertain it was erroneous

IT IS ORDERED that this appeal be allowed and the said decision of the Board be reversed accordingly

AND this Court does not think fit to make any further or other order on this appeal" (save as to costs, on which we should hear counsel).

There is nothing I can usefully add.

Keith, J.:

13. I agree with both judgments, and I wish to add one thing, by way of emphasis of an observation of Litton V.-P. I have some sympathy for the appellant. Because of the misapprehension by the Board of its powers, the appellant has been denied the consideration on its merits of his application for the renewal of his registration for many months. The consequence is that he has not been registered since 1 January. Although I recognise that the consideration of the application on its merits is a matter for the Board, and not for us, I express the strong hope that the Board will do what it can to mitigate the consequences of its error by considering the application on its merits as soon as possible.

Representation:

Mr Benjamin Chain (M/S C.M. Li, Chow, Pang & Chan) for Appellant

Mr Robert Whitehead (Attorney General's Chambers) for Respondent