Lok Man Fai Felix v Architects Registration Board
Court of Appeal
Civil Appeal No 268 of 2017
Lam V-P and Au JA
4 December 2018, 15 March, 2 April 2019

Professions — architects — disciplinary proceedings — inquiry committee — no reasons given by committee for findings — decision confirmed by review committee — whether appellate court had power to direct inquiry committee to give reasons

In July 2017, the Inquiry Committee (“IC”), established by the Architects Registration Board (“ARB”), found that X, a registered architect, had committed disciplinary offences in respect of 19 complaints against him, and its decision was confirmed by the Review Committee (“RC”) in August 2017. The IC’s decision did not discuss the evidence or the competing submissions before it and X appealed, arguing the IC failed to provide reasons for their findings. Section 24(1) of the Architects Registration Ordinance (Cap. 408) provides for a two-tier process: before an inquiry committee could make any orders, its findings or proposed orders must be confirmed by the review committee. Under s. 26(4), the review committee may reverse a finding of guilt by the inquiry committee; vary a proposed order; or remit the matter to the inquiry committee.

Held, allowing the appeal and remitting the matter to a differently constituted inquiry committee, that:

1) It was impossible for the Court to know the basis on which the IC reached its findings. A first instance judge must identify matters which were critical to his decision and explain the manner in which he resolved them. The same rationale applied in the context of review and appeal in disciplinary proceedings (English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409 applied). (See paras. 6–7.)

2) For the same reason, the Court was unable to assess if new evidence X sought to adduce on appeal was such that, if given, it would probably have had an important influence on the result of the case (Ladd v Marshall [1954] 1 WLR 1489 considered). (See para. 8.)

3) The Ordinance envisaged a second-tier merits review by the review committee which, to perform its role properly, must know the reasons for the findings by the inquiry committee. In determining appeals from a statutory tribunal, the Court’s power to direct the tribunal to give supplemental reasons depended primarily on the statutory regime. Here, by necessary implication, the Ordinance envisioned that the inquiry committee should set out the reasons for its findings when the decision was placed before the review committee for confirmation. Thus, the power of the review committee to remit the decision to the inquiry committee for reasons or supplemental reasons could not be exercised after the decision was confirmed by the review committee. (See paras. 17–18, 27, 32.)

4) By the time an appeal was brought to the Court of Appeal, it was no longer possible for further reasons to be given by the inquiry committee because the review committee would not have considered such reasons when it confirmed the decision. (See para. 34.)

5) Even assuming the Court had such a power, it should not exercise its discretion in this case. First, given the long lapse of time since the hearing before the IC, there was a high risk that its members could not recall the reasons for their findings. Second, the reasons to be given should be those made at the same time as the decision, not subsequently. The risk of ex post facto reasoning by statutory tribunals was much greater than by professional judges. Third, this was a case where no reasons were given rather than reasoning was inadequate, so that there was a real risk that supplementary reasons would be reconstructions of proper reasons, rather than the unexpressed actual reasons. Finally, the function of evidence to explain the reasons admitted by the Court should generally be elucidation not fundamental alteration of the stated reasons. The consequences of a failure to give reasons depended very much on the statutory context and the particular circumstances of the case (Barke v SEETEC Business Technology Centre Ltd [2005] EWCA Civ 578 applied; R (Ermakov) v Westminster City Council[1996] 2 All ER 302 considered). (See paras. 35–40.)

6) The IC had failed to give any reason for its findings and it would be wholly wrong for the Court to reconstruct the reasons for such findings. The appeal process was not to be conducted as if the Court would hear the matter afresh by reference to written records. (See para. 48.)

7) (Obiter) Given the serious consequences of disciplinary proceedings, only in an extremely rare case would reasons for a decision not be required. The underlying rationale was not just fairness to the individual concerned, but also more generally that unless reasons were given, it might not be obvious at all that justice had been done (Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority (1998) 1 HKCFAR 279, Dr Wu Hin Ting v Medical Council of Hong Kong [2004] 2 HKC 367 applied). (See paras. 49–51.)

Appeal

This was an appeal by the appellant-registered architect against the decision of the inquiry committee established by the Architects Registration Board, finding him guilty of disciplinary offences, which decision was confirmed by the review committee. The facts are set out in the judgment.

Jurisdictions: 

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