“Duty to Give Reasons”

The judgment of the Court of Appeal in Lok Man Fai v Architects Registration Board [2019] HKCA 405 is an important reminder of the general requirement that a statutory body which carries out a disciplinary function should give written reasons for its findings. Given the numerous statutory tribunals that exist in Hong Kong, and the disciplinary procedures that come with them, the judgment should be of interest to an array of different industries, trades and professions.

Citing several leading Hong Kong and English appeal cases, the judgment of the Court of Appeal summarises the importance of the requirement for disciplinary committees to give reasons for their findings. It is not enough that a disciplinary committee sets out its findings alone. The statutory or common law requirement that a disciplinary committee must give supporting reasons enables a respondent: (i) to know why a disciplinary committee (often made up of his or her peers) decided as it did; and (ii) to consider whether to appeal to a review body or court.

As with an appeal from a lower court to a higher court, a disciplinary committee need not set out every factor which weighed on its deliberations. However, there is a requirement for a disciplinary committee to record those matters which are material to its findings; especially where those findings result in a regulatory sanction.

In Lok Man Fai v Architects Registration Board, the relevant decision of an Inquiry Committee as confirmed by a Review Committee does not appear to have set out the reasons for its findings. Those findings contained numerous conclusions concerning alleged inadequacies in the appellant’s work, apparently with respect to a refurbishment project, but the decision does not appear to have set out the supporting evidence or the competing submissions.

The statutory disciplinary scheme under the Architects Registration Ordinance (Cap. 408) provides for a “two-tier” scheme – namely, before an Inquiry Committee makes a disciplinary order its findings and proposed order must be confirmed by a Review Committee. In order for the Review Committee to function as a review body the decision of the Inquiry Committee should include written reasons for its findings before being sent to the Review Committee.

As with many disciplinary proceedings in Hong Kong, the Ordinance provides for a statutory right of appeal to the Court of Appeal.

As a result of the inadequacies in the Inquiry Committee’s decision, the Court of Appeal ordered that the disciplinary proceedings be remitted to a differently constituted Inquiry Committee to consider the complaint afresh. Interestingly, given the “two-tier” disciplinary process, the Court of Appeal did not consider that it was for it (as an appellate court) to remit the matter back to the Inquiry Committee for reasons or supplemental reasons to be given – that was a matter for the Review Committee before service of the relevant order on the registered architect and it was too late to exercise that power once the Review Committee had confirmed the Inquiry Committee’s decision.

Whether a court can generally order a disciplinary committee to give written reasons (as opposed to remitting the case back to a differently constituted disciplinary committee) primarily depends on the statutory regime in question. In this case, it is clear that even if the Court of Appeal considered that it had the power to order the Inquiry Committee to give written reasons it was reluctant to do so because: (i) this was a case where no reasons had been given, rather than inadequate reasons; and (ii) it would be difficult for the same Inquiry Committee to go back in time in order to establish the actual (albeit unexpressed) reasons for its findings.

While the judgment relates to an appeal arising from disciplinary proceedings governed by the Architects Registration Ordinance, the general observations of the Court of Appeal are a salutary reminder for every member who sits on a disciplinary board or tribunal in Hong Kong.

Jurisdictions: 

Of Counsel, RPC