FAMV No.

6 of 2013

IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 6 OF 2013 (CIVIL) (ON APPLICATION FOR LEAVE TO APPEAL FROM CACV NO. 227 OF 2011) _____________________

Between: CHAN CHIU KWOK, CHARLES and THE HONG KONG INSTITUTE OF SURVEYORS _____________________ Respondent Applicant

Appeal Committee:

Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Mr Justice Tang PJ 12 July 2013 17 July 2013

Hearing and Decision: Handing Down of Reasons:

_________________________ DETERMINATION _________________________

since 1995. 2. been a Registered Professional Surveyor (“RPS”). 4. In 2010. the applicant commenced proceedings against HKIS for judicial review. The applicant was admitted as a member of The Hong Kong Institute of Surveyors (“HKIS”) in November 1988 and is currently a Fellow in the Professional Grade in the Division of General Practice. CACV 227/2011 (Kwan. He has also. the applicant was informed that a formal charge would be drawn up and a Disciplinary Board appointed. After initial investigations by a Preliminary Review Committee leading to the appointment of a Committee of Investigation.2 The Court of Appeal refused him leave to appeal to this Court3 and his application for leave was therefore heard by the Appeal Committee. HKIS took up the complaint. Reyes J1 refused his application for judicial review and his appeal against such refusal was dismissed by the Court of Appeal. The applicant submits that two questions of great general or public importance arise from his application for judicial review as follows: Question 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 1 2 3 HCAL 6/2011 (26 September 2011). We dismissed this application for leave to appeal with reasons to be given later. Fok JJA and Barma J. We now provide our reasons. HKIS received from the Securities and Futures Commission. . Fok and Barma JJA. 6 November 2012).-2- Mr Justice Ribeiro PJ: 1. an anonymous complaint about the applicant in relation to a valuation report prepared for a public listing. At that point. 3. 30 January 2013). CACV 227/2011 (Kwan.

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?” Question 2 “Where. under the HKIS Rules of Conduct. We respectfully agree. Mr Philip Dykes SC. held that Question 1 was not reasonably arguable by the applicant for the reasons given in her Ladyship’s judgment which upheld the reasoning of Reyes J. But the two disciplinary schemes regulate distinct professional qualifications and there is nothing to require one scheme to give way to the other. must the member also be informed of the Case that was considered by the PRC at the same time?" Question 1 5.-3- Registered Professional Surveyors Ordinance. Cap 417 (“SRO”) and a complaint is made concerning his conduct to the HKIS. appearing for the applicant. 6.2. he submitted that Question 1 was of great and general importance because it addresses a legal problem which arises whenever a statutory disciplinary code overlaps with a professional code which is contractually based. Kwan JA. the Honorary Secretary informs a member of that fact. . submitted that the case involves an overlap and possible conflict between two sets of disciplinary procedures. There is plainly a close connection between the two regulatory systems since members of HKIS play an important role in operating the SRO’s machinery. 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.2 of the Rules of Conduct. writing for the Court of Appeal. It is of little relevance that one set of rules has a contractual basis. bye-laws and rules of conduct of the HKIS. Stressing the contractual nature of the constitution. pursuant to Rule 4. 7.

HKIS lays down criteria for membership 8 based on professional A corporate member (a Fellow or a qualifications.1-6. Member) is entitled to use the abbreviation “FHKIS” or “MHKIS” after his or her name and may also “present himself as a Professional Surveyor”.7 9. §2.4-§5. Bye-laws 6.5 HKISO s 10(1) provides that the constitution and bye-laws of the unincorporated HKIS shall be adopted as the constitution of the incorporated Institute.1.10 If a member is expelled.3.8. HKIS began life as an unincorporated association and The Hong Kong Institute of Surveyors Ordinance (“HKISO”) 4 converted it into a statutory corporation.5. he must return his diplomas of membership and “he shall not be entitled to use any designation or description which implies membership or former membership of the Institute”. 4. Bye-laws §§6. Thus. ROC §§2. 3. . Constitution §5.3-§2. Section 3. including the disciplinary provisions in the bye-laws6 and rules of conduct. ROC §1.1.1-§1.9 The ability to claim membership of HKIS is plainly a valuable entitlement and HKIS enforces a disciplinary code to safeguard the Institute’s reputation and to maintain high professional standards on the part of its members. the HKISO conferred statutory recognition on those foundational documents.11 4 5 6 7 8 9 10 11 Cap 1148.1-§6. Bye-laws §2.-4- 8. although the constitution and bye-laws are contractual as between members and are not pieces of legislation.5. experience and standing.4. ROC §2.5.

12 is concerned with a different professional status. The Surveyors Registration Ordinance. A person who decides to apply both for membership of HKIS and for registration as a RPS. with or without a qualifying division. They are self-contained schemes and there is nothing in either the SRO 12 13 14 15 Cap 417. with its own disciplinary procedures. Each seeks to safeguard the value and reputation of the professional status it confers by laying down its own code of conduct. The SRO has its own disciplinary scheme for dealing with complaints or allegations of “misconduct or neglect in any professional respect ”14 by any RPS. One may also be registered as a RPS without being a member of HKIS if certain alternative criteria are satisfied. 11. but additional requirements (including ordinary residence in Hong Kong and being a “fit and proper person”) must also be met. The register is open to inspection by the public.13 Being a member of HKIS does serve as part of one set of qualifying criteria. Someone who is registered is entitled to describe himself as a “Registered Professional Surveyor” and to use the initials “RPS”. appearing on a statutory register.15 12. after his name. Section 29. If the name of a RPS is removed from the register. Section 20(1)(a).-5- 10. undertakes to be bound by the two separate disciplinary regimes. . Section 12. that person must return any certificate issued and anyone who purports to use the RPS description or initials without being on the register may be restrained by court order. The two schemes therefore involve different professional qualifications. The SRO’s conditions for registration differ from the criteria for membership of HKIS. that of “Registered Professional Surveyor” (“RPS”).

13.. Question 2 is fact-specific and does not raise a question of great general or public importance. HKIS is somehow precluded from dealing with that complaint in accordance with its constitution and bye-laws (which have received statutory recognition). but is somehow bound to refer that complaint to the Registrar of the Surveyors Registration Board under SRO. leading subsequently to removal from the register under the SRO. . is membership of the HKIS and it is obviously the case that a person may cease to hold the HKIS qualification as a result of HKIS disciplinary proceedings. There is accordingly simply no basis for Mr Dykes’s submission that where. as noted above.. 14.. HKIS receives a complaint regarding one of its Fellows. section 19(1)(e) of the SRO provides that the Registrar may remove the name of a RPS from the register “if he has notice that the (RPS) has . Mr Dykes has had to place his application on the “or otherwise” basis. On the contrary.-6- or the HKISO (or the HKIS’s constitutional documents) to suggest that the SRO regime is somehow to take precedence.” One such qualification. That proposition is not reasonably arguable. the SRO implicitly envisages that there may indeed be prior HKIS disciplinary proceedings.. We will content ourselves with saying that we fully agree with the reasoning of Kwan JA at paragraphs 46-57 of her judgment and likewise conclude that there are no grounds for granting leave on that exceptional basis. ceased to hold a qualification by virtue of which he was registered. It follows that by section 19(1)(e). Question 2 15. section 3 “before giving consideration to initiating disciplinary proceedings in itself under the Bye-laws of the HKIS”. as in the present case.

V. Ribeiro) Permanent Judge (Robert Tang) Permanent Judge Mr Philip J.-7- (Patrick Chan) Permanent Judge (R.A. Dykes SC instructed by Mayer Brown JSM for the applicant Mr John Scott SC instructed by Wong & Fok for the respondent .

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