Lau Kam Sing Dickie v. Architects Registration Board Hong Kong Special Administrative Region Inquiry Committee
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CACV 108/2024 [2026] HKCA 1475 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) ________________________ BETWEEN
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________________________ DECISION ________________________ Hon Cheung JA (giving the Decision of the Court) : I. Leave to appeal to the Court of Final Appeal 1.The appellant applies for leave to appeal to the Court of Final Appeal from our judgment dated 9 April 2026 on the grounds that pursuant to section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484), the judgment raises a question of great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision. The question is :
2.We will deal with the application on paper. II. The grounds 3.In respect of the Question, the appellant argued that 1) The respondent did not formulate any charges, still less any charges with sufficient particulars, against the appellant; 2) In its ‘Notice of Complainant’, the respondent merely enclosed the complainant’s Complaint Form to the appellant. The Complaint Form was prepared by a layperson: it contained only vague and unclear accusation; it was replete with duplications; and it was accompanied by voluminous documents (more than 850 pages) without proper explanation or organisation; 3) The appellant was, therefore, never properly informed of the charges and their particulars against him; and 4) The unfairness to the appellant was aggravated by the fact that the appellant was not legally represented throughout the proceedings. 4.The appellant said that the mismatch between the respondent’s findings in its decision dated 22 November 2023 and the allegations contained in the Complaint Form is apparent : 1) The respondent found that the contractor’s 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 the contract and supervised the project adequately. The Complaint Form did not contain such an allegation – the complaint was about the appellant’s alleged failure to assess the contractor’s delay; 2) The respondent found that the appellant had not responded to the complainant’s request to call in the Bond. The Complaint Form’s complaint was different. It alleged that the appellant omitted in calling in the Bond. As the respondent found, the appellant was entitled to award extension of time in favour of the contractor according to his professional judgment. Since the appellant did not consider the contractor was responsible for the delay and awarded full extension of time to the contractor, there was no contractual basis to call in the Bond; 3) The respondent found that the appellant had not noted ‘certain’ defects in the course of handover at completion of the works. Apart from setting out a chronology of events regarding handover, the Complaint Form did not contain the particulars of the alleged ‘certain’ defects; 4) The respondent referred to and relied on ARB Code of Professional Conduct, Principles 2 and 3, which was not referred to and relied on by the Complaint Form. 5.In respect of the ‘otherwise’ limb, the appellant relies upon the following exceptional circumstances : Pursuant to the original disciplinary rules of the Architects Registration Board (the ‘Board’) made under section 22(2) of the ARO as of 1995/1996, precise charges with sufficient particulars were required to be formulated and informed to the accused: Leung Siu Kwong, Christopher v An Inquiry Committee established under section 22 of the Architect Registration Ordinance [1996] 1 HKLR 222, at 225C‑E. In that case, at 239H, the inquiry committee appointed was criticised by the Court regarding the manner that the charges were formulated under the then disciplinary rules. Afterwards, the Board changed its disciplinary rules, which abolished the requirement of formulation of charges altogether. See the latest disciplinary rules updated on or about 18 January 2011. The lack of proper charges was actually raised as a concern by the Court of Appeal in [73] of the judgment. The clarification by the Court of Final Appeal on the requirement for the proper formulation of charges against an accused under the ARO is, therefore, imminent. Otherwise, it is likely that the respondent’s current practice will lead to continued breaches of the ARO and of natural justice. III. Our view 1) The Question 6.In our view, the Question is not engaged and not reasonably arguable. At [73] of our judgment, we suggested that the Inquiry Committee should in the future identify the misconduct or neglect with particulars. In fact, this issue was raised by us at the beginning of the hearing, as it was not apparent from the appeal bundle whether there was a complaint made by the Inquiry Committee itself either in a formal document or by letter. The ARO referred to a ‘complaint concerning a disciplinary offence’. We were told that there was none and the Inquiry Committee relied on the Complaint Form lodged by the Owners. We stated that the better approach would be to have such a document. As can be seen from [12] of our judgment, the Inquiry Committee was able to summarise the Owners’ complaint into nine separate grounds. Our suggestion that it is better to have a complaint prepared by the Inquiry Committee instead of using the Complaint Form lodged by the Owners is clearly a suggestion for future proceedings and not a criticism of it. When this matter was discussed, we expressly stressed that there was no issue on the lack of such a complaint in the appeal as none was raised. No point was taken by the appellant who was legally represented that he would rely on this point as part of his grounds of appeal. No issue of breach of natural justice or the principle of fairness due to the absence of a properly formulated complaint was ever raised by reference to the then disciplinary rules or the case of Leung Siu Kwong, Christoper. 7.In our view, to rely on this ground now is an opportunistic attempt to raise a new point in breach of the Flywin principle both in terms of the ‘state of evidence’ bar and the ‘not considered on intermediate appeal’ bar. The ‘mismatched argument’ now raised by the appellant in respect of the findings by the Inquiry Committee and the allegations contained in the Complaint Form is clearly caught by the ‘state of evidence’ bar. This point is fact‑sensitive, and its introduction at this stage would deprive the respondent of the opportunity to adduce evidence or address the point when it ought properly to have been raised. If indeed there is such a mismatch, the appellant had chosen not to rely on it. The new point is also caught by the ‘not considered on intermediate appeal’ bar. It deprives this Court to find whether the use of the Complaint Form did or did not breach the natural justice principle of ‘right to be heard’ which entails the appellant’s right to know the case made against him and a fair opportunity to answer it, having considered the submission of the respondent and all the evidence that might be adduced had this point been raised. We do not consider that there are any exceptional circumstances in the present case which would justify the new point to be raised at this stage of the proceedings. 8.In any event, the Question is not reasonably arguable. As shown in Leung Siu Kwong, Christopher, the relevant sections of the ARO then in place provided that :
9.The Disciplinary Rules then in place provided that :
10.Litton VP at 225E stated :
11.Under the current version of the ARO, the procedure on complaint remains more or less the same. The only difference is the part on the drafting of the charges and forwarding it to the board is no longer a requirement in the current Architects Registration Ordinance Procedure for Disciplinary Proceedings. It is worth repeating the concluding words of Litton VP that, even under the old regime, ‘No formality is required’ in respect of the charge. The Complaint Form in this case provided a summary of the Owners’ complaints with supporting documents. The appellant, although acting in person before the Inquiry Committee, was clearly aware of the nature of the allegations against him with sufficient detail and had prepared the response and called witness to support his case. He was the one in charge of the Project and was aware of the dissatisfaction of the Owners of the way the Project was carried out which culminated in their lodging of the Complaint Form with the respondent. He had also responded in writing to the Owners’ complaints. To raise this point now is very much an afterthought. 12.In respect of the merits of the case, both the Inquiry Committee and this Court have made concurrent findings on the misconduct and neglect on the part of the appellant. 2) The ‘or otherwise’ limb 13.The practice of this Court is to defer to the Court of Final Appeal to deal with this ground. It is sufficient to us to say that this ground is also not engaged and not reasonably arguable by reason of the matters we have stated. IV. Conclusion 14.The application is, accordingly, dismissed with costs to the respondent which we will summarily assess at $220,000 inclusive of counsel fee.
Mr Calvin Cheuk S.C., instructed by Law Offices of Y. C. Lee，for the Appellant Mr Anthony Chan S.C., instructed by Liu, Chan and Lam, for the Respondent |
Cases cited in this judgment
Further hearings and rulings under CACV 108/2024