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

CACV 227/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 227 OF 2011

(ON APPEAL FROM HCAL NO. 6 OF 2011)

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BETWEEN

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Before: Hon Kwan, Fok and Barma JJA in Court

Date of Hearing: 30 January 2013

Date of Judgment: 30 January 2013

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J U D G M E N T

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Hon Kwan JA (giving the Judgment of the Court):

1.This is an application for leave to appeal to the Court of Final Appeal from a judgment of this court given on 6 November 2012. The grounds of the application are that the questions involved in the appeal are such that by reason of their great, general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

2.Two questions are set out in the Notice of Motion.  They are the two broad issues raised in the appeal heard by this court and are as follows:

“1. Where an individual is both a member of the Hong Kong Institute of Surveyors (“HKIS”) and also a registered professional surveyor within the meaning of s 2 Registered Professional Surveyors Ordinance, Cap 417 (“SRO”) and a complaint is made concerning his conduct to the HKIS, must it first refer the complaint to the Registrar of the Surveyors Registration Board established under s 3 SRO before giving consideration to initiating disciplinary proceedings itself under the By-laws of the HKIS?

2. Where, under the HKIS Rules of Conduct, the Preliminary Review Committee (“PRC”) of the HKIS has decided that a Case made against a member should be dealt with by the Committee of Investigation and, pursuant to Rule 4.2.2 of the Rules of Conduct, the Honorary Secretary informs a member of that fact, must the member also be informed of the Case that was considered by the PRC at the same time?”

3.For the first question, Mr Dykes, SC submitted that it satisfies the requirement of being of “great, general or public importance” because the problem identified could also arise in another situation where a statutory code of discipline overlaps with a contractually based code and so is one of general importance.  He relies on the basic arguments advanced before this court to support his contention that the disciplinary regime under the SRO should take precedence over the By-laws and Rules of Conduct of the HKIS.

4.We do not think it appropriate to grant leave to appeal on the first question as we are not satisfied the appeal has sufficient merits.  The reasons why his arguments on this issue were rejected appeared in paras 38 to 44 of the Reasons for Judgment we handed down on 14 November 2012.  We are not persuaded that his arguments on the construction of the SRO are reasonably arguable.

5.In respect of the second question, Mr Dykes recognised it does not satisfy the requirement of being of “great, general or public importance” so he relies on the “or otherwise” limb.  Granting leave on this limb is an exceptional course.  We see no basis for taking such an exceptional course here.

6.We therefore refuse leave to appeal with costs to the respondent.

Mr Philip Dykes SC, instructed by Mayer Brown JSM, for the Appellant/Applicant

Mr Gerard McCoy SC & Mr Daniel Hui, instructed by Wong & Fok, for the Respondent/Respondent