Must disciplinary tribunals give reasons for their decisions?

In Lok Man Fai Felix v Architects Registration Board [2019] HKCA 405, the Court of Appeal (CA) was faced with an appeal against a disciplinary decision made by an Inquiry Committee of the Architect Registration Board (ARB), for which no reason was given.

Background

The Appellant was found guilty of 10 complaints against him by an Inquiry Committee of the ARB after disciplinary hearings under the Architect Registration Ordinance (ARO) (the Decision). The Appellant appealed against the Decision, his main ground being that no reason had been given for the Decision. 

The Respondent argued that the CA should direct the Inquiry Committee to give reasons or remit the case back to the Inquiry Committee without determining the appeal.  

The Appellant argued that once found that no reason had been given for the Decision, the case should be remitted and heard by a differently constituted Inquiry Committee. 

Decision

The CA allowed the appeal and remitted the case to a differently constituted Inquiry Committee.

First, the CA recognised that it had no power to direct the Inquiry Committee to give supplemental reasons for its decisions. Where the relevant statutory regime expressly or by necessary implication prohibits such course to be adopted, the court cannot disregard that prohibition. The ARO is an example of a statutory regime with such prohibition by necessary implication. The ARO provides for a two-tier process for the making of disciplinary orders, whereby the decision of an Inquiry Committee, including their findings, must be confirmed by a Review Committee. It follows that the Inquiry Committee must give reasons at the time when they forward their decision to the Review Committee, so that the latter can properly perform their review function.

Second, even assuming that the CA had the power to direct the Inquiry Committee to give supplemental reasons, such discretion should not be exercised in the present case because:- 

(i)         There had been a long lapse of time since the disciplinary hearing and there was a high risk that the members could not recall the reasons for reaching their findings;

(ii)        The reasons that the Inquiry Committee must give are reasons given at the time when they made the Decision, not reasons given afterwards, so as to minimise the risk of ex post facto reasoning;

(iii)       This was a case where no reason was given at all, which created a real risk that the supplemental reasons would be a reconstruction of proper reasons for the Decision; and

(iv)       Since the ARO requires reasons to be given at the time of the Decision, failure to do so will likely render the Decision unlawful.

Finally, the CA reminded members of disciplinary boards generally of the benefits of giving reasons for their decisions, citing Li CJ’s observations in Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority (1998) 1 HKCFAR at 279:-

(i)         It ensures that any decision is made on proper grounds;

(ii)        It assists in demonstrating to the parties that the tribunal has carried out its task properly and would enable them to decide the appropriate course of action, and also provides guidance to the community in the future;

(iii)       It will promote and enhance consistency in decisions; and

(iv)       It will demonstrate to the community that the tribunal is functioning properly and engender public confidence.

This is especially so in disciplinary proceedings given their serious consequences.

Comments

Disciplinary tribunals are often constituted by laymen, without the assistance of legal practitioners. As a result, there are instances where tribunals give disciplinary decisions without any reason at all. Lok Man Fai Felix suggests that this alone is fatal to the legality of such decisions.

For some tribunals, for example, the Appeal Tribunal under the Buildings Ordinance, the chairman must be legally qualified. For those without such requirement, it would be prudent for the tribunal to seek assistance from legal practitioners to act as the legal assessor for their proceedings. This should also increase public confidence in those tribunals.