Chan Chiu Kwok, Charles v. The Hong Kong Institute of Surveyors

HCAL 6/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 6 OF 2011

Before: Hon Reyes J in Chambers

Date of Hearing: 24 June 2011

Date of Judgment: 24 June 2011

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J U D G M E N T

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I. Introduction

1.Mr. Chan is a member of the Institute.  He is also a registered professional surveyor under the Surveyors Registration Ordinance (Cap. 417) (SRO).  He obtained leave from Au J to apply for judicial review against the Institute’s decision to appoint a Committee of Investigation to consider a complaint against him.

2.The Institute applies to set aside the leave granted to Mr. Chan.  This is because Mr. Chan (the Institute alleges) has been guilty of material misstatement in his application for leave. 

II.  Background

3.The Institute was incorporated by the Hong Kong Institute of Surveyors Ordinance (Cap. 1148) (HKISO).  The HKISO further provides that the Institute’s bye-laws are to serve as its constitution.

4.The Committee was appointed pursuant to rules in the Institute’s bye-laws relating to disciplinary proceedings. Those proceedings could result in a reprimand or in Mr. Chan being suspended or expelled as a member of the Institute. 

5.If Mr. Chan ceases to be a member of the Institute, he could not remain as a registered professional surveyor under the SRO.  This is because Mr. Chan’s qualification as a registered professional surveyor depends on his continuing membership of the Institute.

6.The SRO stipulates its own disciplinary proceedings for handling complaints against registered professional surveyors.

7.Mr. Chan’s principal case is that the complaint against him should be dealt with in accordance with the disciplinary procedures of the SRO.  The latter (Mr. Chan argues) take precedence over the disciplinary procedures stipulated by the Institute’s bye-laws.

8.Otherwise, Mr. Chan fears that he may end up being de-registered as a professional surveyor without being able to exercise the rights of review and appeal available in respect of disciplinary proceedings under the SRO.  The protections afforded by the SRO against de-registration following disciplinary proceedings would be circumvented by the simple expedient of proceeding under the Institute’s bye-laws.  That (Mr. Chan submits) cannot be right.

III.  Discussion

9.The Institute first submits that Mr. Chan wrongly paraphrased 3 SRO provisions in his leave application.  Mr. Chan stated in his application that certain things had to be done in accordance with the HKISO, when what he ought to have said was that those things ought to have been done in accordance with the SRO.

10.I am unable to see how Mr. Chan’s 3 references to the HKISO (instead of the SRO) materially affect the thrust of his principal argument.  The references to the HKISO are little more than obvious typing errors.

11.The Institute then complains that Mr. Chan never mentioned in his leave application that the Institute has still to formulate actual charges against him.  Mr. Chan is further taken to task for omitting to tell the Court that no complaint has been made against him under the SRO.

12.I do not think that these criticisms against Mr. Chan’s application are valid.

13.It is implicit from paragraphs 5 and 6 of Mr. Chan’s application that the Institute has yet to draw up formal charges.  Thus, for example, paragraph 5 states that the Institute wrote to Mr. Chan in November 2010 that “a formal charge would be drawn up and ... a Disciplinary Board would be appointed”. 

14.Ironically, in effect, a central complaint of Mr. Chan’s against the Institute is precisely that no formal charge has been drawn up.  As a result, even up to now, Mr. Chan says that he has no idea just what complaint he is supposed to meet.

15.Further, whether a complaint has been made against the SRO is logically irrelevant to Mr. Chan’s case.  The thrust of his case is that, being a registered professional surveyor, the complaint against him should have been dealt with according to the SRO.  That would be regardless of whether or not complaint has been made against him under the SRO.

16.A point is made that Mr. Chan omitted to mention that the Institute’s bye-law procedure also permits of appeal to the Court. Mr. Chan’s application for leave does not indeed mention that.  But I do not think that is a material non-disclosure. There may be some argument that the appeal mechanism in the Institute’s bye-laws militates against a view that the SRO procedure trumps the bye-law procedure. But the contours of such argument are far from obvious. The argument would need to be articulated and developed by the Institute in the substantive judicial review hearing. It would only be then, not before, that the Court could assess whether the argument has any validity.

IV.  CONCLUSION

17.Mr. Chan’s principal argument may be right or wrong.  This is not the time to debate the argument’s substance.  For now, it is sufficient to say that, in my view, Mr. Chan has a reasonable prospect of success.  Au J rightly granted leave for judicial review.  The Institute’s summons is therefore dismissed.

Mr. Philip Dykes, SC, instructed by Messrs Mayer Brown JSM, for the Applicant

Mr. Gerard McCoy, SC and Mr. Daniel Hui, instructed by Messrs Wong & Fok, for the Respondent