Lau Kam Sing Dickie v. Architects Registration Board HKSAR Inquiry Committee
Read the full judgment text of CACV 108/2024 on BabelCite. This Court of Appeal judgment was delivered on 9 April 2026.
1. This is the appeal by the appellant (respondent in the proceedings below) pursuant to section 29 of the Architects Registration Ordinance (Cap. 408) (’ ARO ’) against the decision of the Architects Registration Board Inquiry Committee (‘the Inquiry Committee’) which held that the appellant breached section 21(1)(a) of the ARO which provided that ‘A registered architect commits a disciplinary offence if he commits misconduct or neglect in any professional respect.’
Cited by 3 cases · Cites 4 cases
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CACV 108/2024 [2026] HKCA 628 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 108 OF 2024 (ON APPEAL FROM DISCIPLINARY ORDER ARB/ARB2020_01/IC/RC/20231218) ________________________
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____________________ J U D G M E N T ____________________ Hon Cheung JA (giving the Judgment of the Court) : I. The appeal 1.This is the appeal by the appellant (respondent in the proceedings below) pursuant to section 29 of the Architects Registration Ordinance (Cap. 408) (’ARO’) against the decision of the Architects Registration Board Inquiry Committee (‘the Inquiry Committee’) which held that the appellant breached section 21(1)(a) of the ARO which provided that ‘A registered architect commits a disciplinary offence if he commits misconduct or neglect in any professional respect.’ 2.The Inquiry Committee proposed the following penalty to be imposed on the appellant : 1) To order that the Chairman admonish the appellant orally under section 24(1)(f) of ARO; 2) To order that the Registrar to remove the name of the appellant from the register for six months (ARO section 24(1)(b)) (‘the Removal Order’); and 3) To order that the Removal Order be suspended for one year, subject to the condition that the appellant should not commit another disciplinary offence during the said suspended period (ARO section 24(1)(d)). II. Background 3.We will adopt the background of the case outlined by Mr Lai for the Inquiry Committee supplemented by matters pertinent to this appeal. 4.The appellant is the founder, managing director and shareholder of Wealthy Gate Architects & Associates Limited (‘Wealthy Gate’). On 31 July 2012, Wealthy Gate entered into a consultancy agreement (‘the Consultancy Agreement’) with the Incorporated Owners of Kwok Wing House (‘the Owners’) in respect of a building repair works project (‘the Project’), subsidized under the ‘Operation Building Bright Scheme’ 「樓宇更新大行動」(‘the Scheme’) administered by the Urban Renewal Authority (‘URA’). 5.Wealthy Gate’s scope of service included initial design, preparation of tender documents, and contract and construction administration. Wealthy Gate was further required to submit all necessary documents and to assist the Owners in obtaining the subsidy under the Scheme. The appellant was nominated as the ‘authorized person’ for the Project and signed the Consultancy Agreement as the managing director of Wealthy Gate. 6.The Project was awarded by the Owners to Wai Yip Development Construction Ltd (‘the Contractor’). Owing to the time required for government approval of the fire services works, the Contractor proposed, and the Owners agreed, to divide the Project into two contracts, namely, a repair works contract (‘the Repair Works Contract’) and a fire services improvement works contract (‘the FS Works Contract’). Both contracts were signed on 2 July 2014. The Repair Works Contract was for the sum of $1,899,696. The contract period was 120 days with liquidated damages for delay at $5,000 a day. The Contractor was to take up a Bond at 10% of the contract sum. The Architect Instruction issued on 22 July 2014 stated that the contract was to commence on 24 July 2014 and to complete on 20 November 2014. 7.The FS Works Contract was for the sum of $748,800. The contract period was 14 months with liquidated damages at $5,000 a day. The Contractor was to take up a Bond at 10% of the contract sum. The appellant stated that the Architect Instruction dated 22 July 2014 also applied to this contract for contract commencement, though the Architect Instruction only had a contract completion date for the Repair Works Contract. This contract was terminated by the appellant on 11 April 2018 on the instructions of the Owners. 8.There were substantial delays in the work of both contracts. In respect of the Repair Works Contract, on 5 January 2016, URA urged the Owners to submit its application for the final payment of the subsidy together with the requisite documents, stating that if they were not submitted by 4 April 2016, URA would stop processing the case. At that stage, the Repair Works remained incomplete. URA identified 16 outstanding items, and Wealthy Gate itself acknowledged 17 defect items preventing completion. Despite this clearly incomplete state, Wealthy Gate issued a Certificate of Completion on 5 February 2016 purporting to certify completion on 7 July 2015; the appellant signed a Completion Report on 20 March 2016 purporting to confirm completion on 7 July 2015. No defects or outstanding items were recorded in either document. Wealthy Gate nonetheless failed to submit all the documents required for the subsidy application. As a result, on 4 July 2016, URA informed the Owners that $969,479.56 would be deducted from the amount eligible for subsidy under the Scheme. 9.In respect of the FS Works Contract, the Owners and the Contractor were unable to agree on the location of the fire services tank until about January 2018. No site works had been commenced for nearly four years. The FS Works Contract was eventually terminated on 11 April 2018 as mentioned. 10.On 28 February 2020, the representative of the Owners lodged a complaint with the Architects Registration Board (‘Board’) against the appellant. The complaint was made in a Complaint Form provided by the Board. The Owners put a tick on the following item in Clause 12 which stated that :
Translation
11.The Owners also provided a summary of their complaint in Clause 13 :
Translation
III. The Inquiry Committee’s Decision 12.The Inquiry Committee summarised the Owners’ complaints as follows and found that except for Complaint 9, the Owners had succeeded on each of these complaints : 1) Complaints relating to supervision; 2) Serious delay in fire services improvement works; 3) Certified incorrect sum for insurance premium payment; 4) Omission in calling in the Bond; 5) Not exercising required duties, submitting false information, incomplete inspection of defective items upon handover and fire services installation works not to standard; 6) Mis-calculated floor area of the Kwok Wing House; 7) Proposal to interview tenderers with higher tender sums; 8) No response to enquiries; and 9) Awarded incorrect extension of time on the Repair Works Contract. 13.In Decision 5.10, the Inquiry Committee concluded that the appellant had contravened both the ARO and ARB Code of Professional Conduct as follows :
IV. Principles 1) Appeal from professional disciplinary tribunals 14.Both parties relied on this Court’s decision in Dr. Chu Kin Wah v. The Medical Council of Hong Kong, CACV 204/2024 [2026] HKCA 31 at [56]‑[59] on the principles governing appeals from decisions of professional disciplinary tribunals. The starting point is that an appeal against the finding of facts by the tribunal (like that by the Court) is subject to the high threshold that the finding must be plainly wrong before the appellate court will intervene. Second, as the disciplinary tribunal usually comprises members of the profession with knowledge and expertise special to the field not possessed by the appellate judges, the appellate court will be diffident about interfering with the tribunal’s assessment of matters related to the practice of the profession which called for professional judgment and expertise. The appropriate degree of deference the Court accords to the tribunal depends on the circumstances of the case and, in particular, on the nature of the question at hand. Third, in respect of penalties, the tribunal has to have regard to the effects and consequences of the penalty on the professional in question, and also its wider duties as a professional disciplinary body, which include ensuring the penalty reflects the gravity of the occasion, maintaining the reputation of the profession and preserving the confidence of the public in the profession. The Court also acknowledges that, with members of the profession on the panel, the tribunal is uniquely qualified to assess the proper sentence to be imposed for professional misconduct. The tribunal is best placed to weigh the seriousness of professional misconduct in the light of the whole gradation of seriousness of the cases that come before it and to decide what measures are from time to time required for the purpose of maintaining professional standards. This Court therefore accords an appropriate measure of respect to the decision of the tribunal and is very slow to interfere with its determination of the appropriate sanction. 15.In Fong Yiu v Chinese Medicine Council of Hong Kong [2018] 2 HKLRD 439 at [3.3], this Court further stated that, in respect of penalty imposed by the tribunal, whilst the Court of Appeal will accord the appropriate measure of respect to the tribunal’s decision, it will not defer to the disciplinary committee’s decision more than warranted by the circumstances. The Court of Appeal is entitled to consider all the matters to decide whether the penalty imposed by the disciplinary committee was necessary and appropriate in the public interest or was excessive and disproportionate, and in the latter event to substitute an appropriate penalty for the original order. Examples of penalty imposed by disciplinary committee being reversed by the Court of Appeal include one that is out of tune with the evidence or is wrong in principle. 2) Misconduct 16.In The Queen (on the application of Remedy UK Limited) v The General Medical Council [2010] EWHC 1245 (Admin) [Remedy UK Limited] the English Court of Appeal addressed section 35C of the United Kingdom Medical Act 1983 that applies where an allegation is made to the General Medical Council against a registered person that his or her fitness to practise medicine is impaired. Section 35C(2) is as follows :
17.Elias LJ after reviewing the authorities on misconduct summarised the principles as follows :
18.In The Queen on the Application of Dr Malcolm Noel Calhaem v The General Medical Council, [2007] EWHC 2606 (Admin), Jackson J after reviewing the authorities addressed the issue of negligence and deficient professional performance :
19.Under the Hong Kong Medical Registration Ordinance (Cap. 161), the wording of the relevant misconduct is ‘misconduct in any professional respect’ (section 21(1)(b)). In the Dental Registration Ordinance (Cap. 156), the wording is ‘unprofessional conduct’ which is defined by section 18(2) as ‘... an act or omission of a registered dentist which would be reasonably regarded as disgraceful or dishonourable by registered dentist of good repute and competence.’ 20.As stated earlier, under the ARO, the wording is ‘misconduct or neglect in any professional respect’. Whilst Elias LJ was dealing with the issue of professional misconduct of a medical doctor, many of these principles are equally applicable to the issue of misconduct of other professionals including the architect with the necessary adaptation to the nature of their work and practice. The parties did not address us on the term ‘neglect’ but ‘neglect’ is generally regarded as the omission to do some duty which the party is able to do (per Patterson J, King v Burrell, 12 A.&E. 468). V. Grounds of Appeal 21.The appellant raised 16 grounds of appeal, 15 are on the conviction and the last one on penalty. We will discuss the first four grounds together (as the appellant did) and the other grounds individually. 1) The role of Wealthy Gate and the appellant (1) The Inquiry Committee’s finding 22.The position of the appellant at the hearing below was that the architectural consultancy project was managed by a professional team. He personally was not involved in the Project and did not agree that he had committed any professional misconduct or neglect. He claimed that Wealthy Gate had a customer service manager who would take care of customer complaints and report to him directly, and in this case they responded immediately to the Board’s enquiries. The Inquiry Committee held that :
23.The Inquiry Committee then gave examples of how the appellant’s supervision was not satisfactory. (2) The appellant’s arguments 24.Mr Suen for the appellant argued that Wealthy Gate did not provide architectural consultancy service (Ground 1). The scope of work of the consultant defined in the Consultancy Agreement was i) to conduct a survey to the common area delineated in the Deed of Mutual Covenant, roof, underground drain, concrete canopy, and unauthorized building works; ii) to identify the works required to discharge statutory orders and advisory letters issued by the Buildings Department (‘BD’); iii) to prepare a schedule of repair works for the Project in accordance with findings in i) and ii) above; iv) to prepare an estimate of cost; v) to prepare tender documents; vi) to issue tender and select contractor; vii) to carry out project management of repair works. Also, the consultant needed to assist the Owners to apply for subsidy provided by the Scheme. Under the Scheme, the subsidy first had to be used on the prescribed inspection and building repair works for the common parts of the building (‘Priority Works’). After paying for the Priority Works, the remaining part of the subsidy could be used to other specified building repair works but do not fall within the category of Priority Works, including, common drainpipe of the air conditioner, fire safety improvement works, provision of or improvement to and maintenance of fire service installations and equipment, etc. What the Consultancy Agreement called for was a professional who was trained and with experience in looking for problems and defects of existing buildings, to devise a scope of works, to draft a repair contract that was budget oriented. Upgrades or aesthetic improvement items would get no subsidies. There was no requirement for design and architectural inputs. The most suitable profession to take up those tasks was a building surveyor. The Company was in fact appointed and acting as building surveying consultant instead of architectural consultant for the Project. 25.In Ground 2, the appellant challenged the finding that he was the registered architect of the Project and the Inquiry Committee failed to make a distinction between him as the representative of Wealthy Gate and his own capacity. The finding is wrong and inconsistent with the Inquiry Committee’s own finding (and not disputed by the appellant) that the execution of the Project is the responsibility of his project director, project manager and their related staff. The finding is also wrong in that the Consultancy Agreement does not provide that the appellant in his own capacity would be the registered architect to the Project. It is also inconsistent with the Contracts’ terms, where only Wealthy Gate was identified as the architect with ‘the power to supervise the works’ 「負責工程監管」(Translation: Responsible for project supervision). The appellant has no power or authority to supervise the works in his own capacity. It follows that if any instruction was given by the appellant in his own capacity, without acting through Wealthy Gate, the Contractor would not be obliged to comply with such instructions. In the complainant’s written statements in relation to each item of complaint, all complaints were directed towards Wealthy Gate as the consultant, and there was no allegation that the appellant was the architect to the Project. In reaching the above findings, the Inquiry Committee has drawn support only from the complainant’s witness statement which wrongly identified him as the consultant, without making any distinction between him and Wealthy Gate. 26.In Ground 3, the appellant referred to 4.10 of the Decision where the Inquiry Committee, held :
27.The appellant submitted that the Inquiry Committee got the answer wrong in that the appellant was merely describing the role of Wealthy Gate in the Project. The appellant repeated that these were the duties of Wealthy Gate, with Mr Jason Tse King Fai (‘Mr Tse’) as the Project Director and Mr Law Chun Kit (‘Mr Law’) as the Senior Project Manager. 28.The appellant further argued in Ground 4 that consequently the Inquiry Committee’s finding that he had a duty to supervise and monitor the Project and site works is incorrect. He was not the registered architect of the Project. The evidence showed that he was not directly involved in the day‑to‑day running of the Project. The Project Director, Mr Tse, a Registered Professional Surveyor (Building Surveying), was in charge. The Inquiry Committee cannot rely on the mere fact that he signed outgoing correspondences, certificates and instructions, to conclude that he was the registered architect and that a duty to supervise and monitor the Project arose. It is obvious that the appellant attempted to put all his titles beneath his signatures, including his honorary awards. It does not mean that he was acting in all those capacities. The Inquiry Committee has wrongly imposed on him duties and obligations of Wealthy Gate; and attributed to him Wealthy Gate’s, or those of its staff, misfeasance or malfeasance and failure to comply with the terms of the Contracts or Consultancy Agreement. (3) Our view 29.In our view, Ground 1 has no merits. The appellant had never challenged in the proceedings below that Wealthy Gate did not provide architectural consultancy. The Inquiry Committee was not called upon to address this point. In any event, the answer to what is the role of the appellant is to be found, first, within the four corners of the ARO. Section 3 provides that :
30.Section 30(4) further provides that :
31.We are not convinced of the distinction drawn by the appellant that Wealthy Gate or the appellant was engaged as a ‘building surveying consultant’ and not ‘architectural consultant’. The scope of the service provided by Wealthy Gate and the appellant in the Consultancy Agreement is, as Mr Lai submitted, the usual service of an architectural consultant. Further, Wealthy Gate was identified as the architect in the tender analysis report and in both of the Contracts. The full name of Wealthy Gate consisted of the words ‘Architects & Associates Limited’. Under Clause 2 of the Consultancy Agreement, the scope of service provided by Wealthy Gate included the provision of an ‘approved person’ registered with the Building Department to coordinate the repair and renovation works. The name of the appellant and his registration number were expressly stated in Clause 2.1. Wealthy Gate is clearly a company covered by section 3 and there is no suggestion it was supervised or managed by any registered architect other than the appellant, who is its founder, managing director, chief executive officer and shareholder. The appellant also had full knowledge of the Project. He signed the Consultancy Agreement, which required him personally to sign and observe the directives issued under the Scheme (Clause 2.5) and to supervise the Project at all stages (Attachment 16A of the Consultancy Agreement). He also signed all correspondence, certificates and reports with his qualifications, including ‘registered architect’, expressly listed beneath his signature. The appellant was clearly under a duty to supervise and manage the business of Wealthy Gate and the Project in his capacity as a registered architect. 32.In Ground 2, Mr Suen argued that a distinction must be drawn between the role of the appellant as a director of Wealthy Gate and Wealthy Gate itself. Relying on Sin Chung Yin Ronald v Dental Council of Hong Kong (2016) 19 HKCFAR 528, he argued that there could not be any breach of duty to supervise if the appellant did not have knowledge of the circumstances calling for him to act. Such knowledge cannot be attributed to him by reason of him being a director. Further, the Inquiry Committee had found that ‘there was a supervision system established by the Company’. 33.In our view, the reliance on Sin Chung Yin Ronald is misplaced. In that case, the four appellants are registered dentists who were directors of a dental company. The company employed a dentist who had failed to renew his practising certificate. It was an agreed fact that the dentist’s failure to apply for renewal of his practising certificate in 2008 was ‘unknown to the [appellants] and unknown to [the company]’. It was also agreed that as soon as the appellants knew of this, they immediately suspended the duties of the dentist and subsequently terminated his employment. The Court of Final Appeal quashed the conviction of unprofessional conduct imposed by the Dental Council of Hong Kong on the appellant. The Court expressly discussed section 12(2A) of the Dentist Registration Ordinance (Cap. 156) which provided that in relation to a director or manager, it is a defence for him to prove that the offence alleged to be committed by the body corporate was committed without his knowledge. It held that the charge was defective as it was an agreed fact that the act of employing the dentist was that of the company with whom the dentist had an employment agreement and not the act of the appellants. Further, neither they nor the company knew that the dentist was unregistered. The knowledge of administrative staff could not in law be attributed to the directors. In any event, that the staff knew that the dentist was practising without a valid practising certificate did not justify a finding that they knew he was no longer registered. The facts of the present case are clearly distinguishable. The Inquiry Committee had made specific findings why the appellant had failed in his duty notwithstanding the system of supervision. As shown in Remedy UK Limited, conduct can properly be described as linked to the practice of the profession, even though it involves the practice of administrative and managerial functions, where they are part of the daily practice of that profession. As the architect in charge of the Project, the appellant could not simply delegate his functions of supervision, administrative and managerial functions to the subordinates without being actively involved. The Inquiry Committee was entitled to find, based on its experience and expertise in this field, that this denial of responsibility approach by the appellant is not acceptable and constitutes a misconduct in a professional respect. 34.In respect of Grounds 3 and 4, our view is that the Inquiry Committee’s finding on the role of the appellant is both a finding of fact and law. The appellant is not able to show that the finding of fact is plainly wrong or that the finding of law is wrong. 2) Other grounds : Overview 35.Before we deal with the other grounds of appeal, we would like to say at the outset that the findings by the Inquiry Committee on the matters under challenge are mainly either based on findings of fact or findings that called for professional judgment and expertise or both. This is an extremely high threshold for the appellant to overcome. Unless these findings are shown to be plainly wrong, this Court will not intervene and overturn the findings. 3) Ground 5 (re: Decision 5.2) (1) The Decision 36.In 5.2 of the Decision, the Inquiry Committee accepted that in respect of the FS Works Contract, the appellant was not directly responsible for the delay caused by the Contractor. It was the Contractor’s professionals who could not find suitable locations for the fire service water tanks and intermediate tanks which satisfied the appellant, the owners and tenants of the Premises. However, it held that it could not accept that ‘the [appellant] has no duty to supervise and monitor the progress of the works. Failure to start the site work and complete it in four years could have been avoided if the [appellant] had been more pro‑active in the administration of this contract and supervised the Project adequately. And the contract would not have been terminated by the [Owners]’. The Inquiry Committee found that the supervision provided by the appellant falls far below the standard expected from a registered architect at the appellant’s position and this amounts to a professional misconduct and neglect. (2) The appellant’s argument 37.The appellant challenged the Inquiry Committee’s finding that he had failed to supervise diligently and properly the fire services works. (3) Our view 38.We are of the view the Inquiry Committee’s finding cannot be faulted. It is a finding that is open to Inquiry Committee on the evidence. We have already stated that the role of the appellant includes administrative and managerial functions that are part of his practice as an architect. 4) Ground 6 (re: Decision 5.4) (1) The Decision 39.The Inquiry Committee found :
(2) The appellant’s argument 40.The appellant challenged the Inquiry Committee’s finding that he had omitted to call in the Bond. His position is that the Bond in question was never shown to him or Wealthy Gate, and it was not exhibited before the Inquiry Committee. There is only reference to it at [6.7] of the Repair Works Contract and [6.5] of the FS Works Contract, as ‘履約保證金’ (Translation: Performance Bond). The Inquiry Committee came to its findings without even knowing the terms or the nature of the Bond. (3) Our view 41.This ground has no merits. The appellant’s position before the Inquiry Committee was that it was inappropriate to call in the Bond. This can be shown in his witness statement filed in the inquiry in response to the complaint where he said that the request by the Owners to Wealthy Gate to call in the Bond was unreasonable because there was no basis to call in the Bond since there were justifiable reasons provided by the Contractor to apply for extension of time to complete the contract. This is totally contrary to his present position that he had no knowledge of the Bond. It is not open to the appellant to adopt a new position on appeal and to challenge the Inquiry Committee’s finding on the new basis. 5) Ground 7 (re: Decision 5.5) (1) The Decision 42.This is in respect of outstanding works and defects not noted by the appellant when he certified works completion for the Repair Works Contract. The Inquiry Committed held :
43.The Inquiry Committee in Decision 5.10, dealing with ARB Code of Professional Conduct — Principle 2, stated that ‘Inadequate supervision and awareness of outstanding works and progress on both contracts resulting in part of URA’s subsidy being withdrawn’. (2) The appellant’s argument 44.The appellant submitted that the Owners’ inability to claim the amount in full was also caused by the inability to complete the fire services improvement works. It was the fault of the Owners or the Contractor and not the appellant. Further, as explained by the URA, the subsidy enjoyed by individual owners had already reached the cap of $16,000, and therefore the subsidy amount was not affected. Even if there was any mistake on the part of Wealthy Gate, it should not amount to misconduct. (3) Our view 45.The URA had by letter dated 5 January 2016 reminded the Owners, Wealthy Gate and the appellant to submit all the necessary documents in order to claim the subsidy and pointed out that the appellant should be asked to explain the matters concerning the contract and technical issues to the Owners. Whilst it is open to the Inquiry Committee to find that the appellant had not adequately or properly supervised the site works to ensure all the defective works were rectified, our view is that it is wrong for it to hold that such lack of supervision caused the inability of the Owners to claim the full subsidy from the URA. The Notice dated 4 July 2016 from URA to the Owners informing the Owners of the reduction to the amount of contract sum eligible for claim expressly stated that the reduction did not affect the subsidy payable under the Scheme because the subsidy granted to the individual owners had already reached the upper limit. Mr Lai accepted that the Inquiry Committee did not address this point and did not explore whether it has any impact on the individual owners. In our view, this aspect of the complaint is proved only in respect of the lack of diligent supervision and not in respect of a reduction in the URA subsidy or financial loss of the individual owners. 6) Ground 8 (re: Decision 5.7) (1) The Decision 46.The Inquiry Committee dealt with complaint about the recommendation on the tenderers to be interviewed by the Owners as follows :
(2) The appellant’s argument 47.The appellant submitted that this is not a finding about the quality of work, but a more serious finding that he had shown no proper regard whatsoever for the interests of the Owners. The Inquiry Committee’s explanation only focused on the figures (tender price) in the returned tenders. The Inquiry Committee completely ignored the Tender Analysis Report prepared by Wealthy Gate, which considered, inter alia, analysis criteria, tenderers’ experience, licensing, financial position, dispute records, reference letters, a detailed price analysis and Wealthy Gate’s recommendation. Mr Law of Wealthy Gate also explained that those contractors who provided relatively lower quotations were not recommended to ensure quality. There is no indication that the Inquiry Committee had even considered the Tender Analysis Report or Mr Law’s explanation. Further, the analysis and the recommendations in the Tender Analysis Report were made pursuant to Wealthy Gate’s own professional judgment. There was no finding in the Decision that the analysis was wrong. In any event, notwithstanding Wealthy Gate’s recommendation, the Owners could choose to engage any of the 23 tenderers, and in the end the Owners did pick the Contractor, who was not recommended for interview by the appellant, with the quoted price way lower than average. (3) The Inquiry Committee’s response 48.Mr Lai submitted that the cost estimates provided by URA and Wealthy Gate were approximately $2,470,000 and $2,800,000 respectively. The returned tender prices ranged from approximately $2,450,000 to $4,780,000. It was reasonable for the Owners to explore discussions with tenderers at the lower end, closest to both estimates, bearing in mind the limited subsidy available. The Inquiry Committee was entitled to find that, by inviting the Owners to interview only the tenderers at the higher end of the range, the appellant displayed a lack of sensitivity to the financial implications and failed to have proper regard to the Owners’ interests. (4) Our view 49.We are unable to accept the Inquiry Committee’s decision on this complaint. The Owners’ complaint below was that the tender prices of all the tenderers recommended for interview by the appellant were higher than the estimates given by URA and Wealthy Gate. In their written response to the appellant’s reply to the complaints, the Owners stated that two tenderers which fulfilled five of the important requirements with relatively low tender prices ($3,760,000 and $3,780,000) were not recommended for interview. However, it was expressly stated in the Tender Analysis Report (at 5.12) that the recommendation for interview was made on the basis that five or four of the more important assessment criteria were satisfied and the tender prices were not underpriced. The tender prices of the two firms mentioned in the Owners’ written response were considered by Wealthy Gate to be underpriced (see 4.2.3). Further, one of these two tenderers had not produced a registered fire services contractor licence (註冊消防裝置承辦商牌照) and thus did not satisfy the tender requirement (see 2.4.4). In any event, the Owners had decided to appoint the Contractor, which was not among the tenderers recommended for interview. In finding that the appellant did not have proper regard for the interests of the Owners, the Inquiry Committee had made no reference to, and did not appear to have considered, the Tender Analysis Report and the assessments and reasons underlying the recommendation on tenderers to be interviewed. In the circumstances, the Inquiry Committee’s conclusion and finding on this complaint cannot be supported. 7) Ground 9 (re: Decision 5.6) (1) The Decision 50.The Inquiry Committee held that the appellant had mis‑calculated the floor area of the Premises :
(2) The appellant’s argument 51.The appellant argued that the Inquiry Committee erred in comprehending that miscalculation of wall area by the appellant caused an increase in the budget estimate. As explained by Mr Law, the estimate was made by Mr Tse according to data from returned tenders. Further, the items under the $4.67 million and $2.8 million estimates were different. In any event, it was corrected by Wealthy Gate eventually. This should not amount to misconduct. (3) Our view 52.Again, this ground has no merits. The miscalculation was documented and admitted. This is another example of the appellant trying to shift the blame to others notwithstanding his responsibility as the registered architect of the Project. 8) Ground 10 (re: Decision 5.5 and 5.10) (1) The Decision 53.This is about the issue of consent of the Owners prior to the issue of the Final Certificate. In 5.5.2 of the Decision, the Inquiry Committee held :
54.In 5.10, the Inquiry Committee held that the appellant had breached ‘ARB Code of Professional Conduct — Principle 3’ and brought the profession into disrepute by issuing a Certificate of Making Good without adhering to the agreed procedure for clearing outstanding works and defects. (2) The appellant’s argument 55.The appellant argued that the Inquiry Committee erred in holding that consent from the Owners was required before the issue of Certificate of Making Good Defects and that the agreed procedure for clearing outstanding works was not adhered. The decision is flawed in that no basis was identified on how the issuance of the Certificate of Making Good Defects would bring about the issue of the Final Certificate and resulting in the release of any retention money. A final certificate is different from an interim certificate/certificate of completion. In the present case, under the Consultancy Agreement, the requirement for written consent is only applicable to the final certificate. There is no provision requiring written permission for the issuance of any other certificate. (3) Our view 56.Clause 6 of the Consultancy Agreement provided that :
57.In our view, whilst the Inquiry Committee had referred to the complaint of the Owners that their consent was required, it did not make any finding that prior consent of the Owners was required. When the Inquiry Committee found that the certificate was issued without observing the agreed procedure, it was directed at the appellant’s failure to ensure that the outstanding works and defects would be cleared first. This ground must be read together with our view in Ground 7. In our view, the Inquiry Committee was correct in its decision. 9) Ground 11 (1) The Decision 58.This issue deals with the Decision 5.5.4 which is set out in [41]. (2) The appellant’s argument 59.The appellant submitted that the Inquiry Committee erred in holding that there was inadequate supervision on registering outstanding works and defects during site works and at completion of the contract at [5.5.1], [5.5.4] of the Decision. This is inconsistent with the evidence in that Wealthy Gate had from time to time issued letters to the Contractor giving instructions on rectification of defects. In the certificate 「竣工証書(部分)」(Translation: Completion Certificate (Partial)) dated 5 February 2016, Wealthy Gate expressly stated that the Contractor still had to rectify all the defects during the defects liability period. The Owners had also stated in its written statement that from 12 May 2016 to 17 July 2017, Wealthy Gate issued various requests to the Contractor to rectify defects. It is incumbent on the Owners to prove that there was defect omitted by Wealthy Gate. In any event, minor omission does not amount to misconduct or neglect on the part of the appellant. (3) Our view 60.There is no merits in this ground. Whilst the appellant had chased the Contractor to rectify the defective work, the finding by the Inquiry Committee is that he had failed to supervise diligently to ensure that the defective works were rectified prior to handover. This clearly is a finding that the Inquiry Committee was entitled to make on the evidence. 10) Ground 12 (re: Decision 5.8) (1) The Decision 61.The Inquiry Committee dealt with the issue of the lack of response by the appellant to the Owners’ inquiries. It held :
(2) The appellant’s arguments 62.The appellant referred to the correspondence sent by the Owners to the appellant on the FS Works Contract and the extension of time for the Repair Works Contract (‘EOT’). He submitted that on the issue of EOT, the Inquiry Committee found that there is no fault on the part of the appellant and as for the FS Works Contract, Wealthy Gate had complied with the Owners’ request to terminate the Contractor’s contract. In respect of the Owners’ complaint about the assessment by Wealthy Gate that there was no delay by the Contractor, the appellant submitted that whether there was delay in the FS Works Contract was a matter which required Wealthy Gate’s professional judgment, acting independently, impartially, fairly and honestly. He ought not be held to have committed any misconduct by not acceding to the Owners’ requests. (3) Our view 63.Again, this ground is without merits. The Inquiry Committee was aware of the evidence on the lack of response from the appellant. The appellant has not shown that the finding was plainly wrong. We have already addressed the issue on the FS Works Contract. 11) Ground 13 (re: Decision 5.3) (1) The Decision 64.The Inquiry Committee dealt with the incorrect sum certified by the appellant for the insurance premium payment. It held :
(2) The appellant’s arguments 65.The appellant submitted that the Inquiry Committee erred in ruling that the mistake in certifying the incorrect sum for insurance premium payment amounted to misconduct. As explained by Mr Law, the arrangement on insurance was only discussed between the Owners and the Contractor. Wealthy Gate was not privy to the discussion. The contract terms and conditions were also silent on who should bear the payment of the premium. Given the above, the appellant ought not be held at fault of not knowing about the arrangement. Even if there is any mistake on the part of the appellant, the mistake had been duly rectified. This should not amount to misconduct. (3) Our view 66.The provision of insurance was part of the terms of the contract between the Owners and the Contractor. The Consultancy Agreement expressly identified Wealthy Gate (and by law, the appellant) as the architect responsible for the supervision of the Project. The interim payment certificates issued by the appellant included errors on the insurance premium. The Inquiry Committee was entitled to find that that the appellant had neglected to check the accuracy of the payment sought before certification. 12) General 67.The appellant submitted that even if it is found that there was any negligence or mistake on his part concerning those matters discussed in Grounds 5 to 13, they are insufficient to amount to misconduct. Further, on those matters where the Inquiry Committee found the appellant causing disrepute to the profession, which were covered under Grounds 6, 10, 11 and 12, there was no element of being morally culpable or otherwise disgraceful in the acts or omissions alleged. 68.In our view, based on the correct findings of fact by the Inquiry Committee, the finding that the appellant was guilty of professional misconduct or neglect was a finding that falls within the professional judgment and expertise of the Inquiry Committee and open for it to make. Even if the misconduct was not morally culpable or disgraceful, does not mean that the misconduct will not bring the profession into disrepute. 13) Penalties (1) The appellant’s arguments 69.The appellant referred to Disciplinary and Regulatory Proceedings 10th Ed by Foster, Treverton‑Jones and Hanif at [10.43]‑[10.56] and submitted the following : i) The expulsion from membership is usually the ultimate penalty that may be imposed by any organisation, bringing with it loss of the privileges of membership or authorisation and the shame of being removed from membership against one’s will. As such, it should be attended with all proper gravity in disciplinary proceedings. ii) Circumstances justifying the imposition of expulsion include, commission of a criminal offence, dishonesty, lack of integrity short of dishonesty, drugs convictions and unacceptably low standard of work. iii) Suspension from practice almost equates in seriousness with permanent exclusion. iv) Lesser sanctions should be considered before imposing a greater sanction. 70.The appellant submitted that the penalty was excessive and disproportionate. He argued that none of the misconduct concern dishonesty or lack of integrity or unacceptably low standard of work. They were at most minor negligence, mistake or breach of the Consultancy Agreement. Furthermore, taking into account the findings of the Undisputed Facts, he was not the person in charge of the Project. The misfeasance or malfeasance was committed by the employees of Wealthy Gate. Even though the Removal Order was accompanied by a suspended sentence of one year, the imposition of a removal order from the Register is excessive and disproportionate in the circumstances. The shame, and lasting professional and reputational consequence, that comes with it cannot be mitigated by the suspended sentence. (2) Our view 71.The penalty imposed by the Inquiry Committee consists of two orders : an oral admonishment and a suspended sentence. By the suspended sentence, the appellant is not immediately suspended from practice so long as he does not commit a similar offence within the next twelve months. Hence, the appellant’s submissions on the severity of expulsion from being a member of the Architect community or being suspended from practice do not apply to the present situation. The misconduct of the appellant lies in that he did not supervise the Project diligently and properly and the Inquiry Committee had identified the instances of the appellant’s failure. Although some of the complaints were not proved, the range of misconduct committed by the appellant clearly entitled the Inquiry Committee to impose the penalty that it had ordered, bearing also in mind that it is a core aspect of his duties under the Consultancy Agreement to supervise the works to be carried out. The penalty cannot be described as excessive, disproportionate, out of line with the evidence or wrong in principle. VI. Conclusion 72.The appeal is dismissed with costs to the Inquiry Committee. VII. A proper charge and legal assistance 73.In this case, the Inquiry Committee did not identify by a separate document the charge or charges that the appellant was to meet. It relied on the complaints raised by the Owners in the Complaint Form. Whilst there is, of course, no issue in the present case that the appellant did not know the charge he was to meet, our view is that the Inquiry Committee should in future identify the misconduct or neglect with particulars so that the issue could be addressed clearly in the form of a properly formulated charge. It is also the practice of other professional disciplinary tribunals to provide a properly formulated charge in a disciplinary inquiry. Mr Lai also informed us that due to financial restraint, the Inquiry Committee did not have legal assistance. As a complaint of professional misconduct affects the reputation and practice of an architect and appeals from the decision goes directly to the Court of Appeal, the Board should consider having legal assistance to assist it in discharging the tasks properly and efficiently and to avoid any unnecessary mistakes that it may not be aware of.
Mr Warren Suen, instructed by Law Offices of Y. C. Lee，for the Appellant Mr Alex YH Lai, instructed by Liu, Chan and Lam, for the Respondent | ||||||||||||||||||||||||||||||||
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