Land Survey (Disciplinary Procedure) Regulation
(Enacting provision omitted—E.R. 5 of 2021)
[20 June 1997]
(Format changes—E.R. 5 of 2021)
(Omitted as spent—E.R. 5 of 2021)
In this Regulation, unless the context otherwise requires—
Chairman (主席) means the chairman of a Disciplinary Board; complainant (投訴人) means— (a)in the case of a complaint made under section 21(1) of the Ordinance, the person who made the complaint and includes the Authority where the Authority has indicated under section 11(4) that he is prepared to take over the complaint; (b)in the case of a complaint made under section 21(3) of the Ordinance, the Authority; defendant (被告人) means the authorized land surveyor in respect of whom a Disciplinary Board has been appointed to conduct an inquiry into his conduct; disciplinary action (紀律制裁) means an order under section 25 of the Ordinance; inquiry (研訊) means an inquiry conducted under section 22 of the Ordinance; party (一方) means the complainant or the defendant; secretary (秘書) means the secretary to a Disciplinary Board appointed under section 22(4) of the Ordinance.After the appointment of a Disciplinary Board, the Chairman shall fix a date, being a date not later than 3 months after the appointment of the Disciplinary Board, upon which the inquiry is proposed to be conducted.
At least 28 days before the date fixed under subsection (1), the secretary shall serve on the defendant, the complainant and the Authority where he is not the complainant, a notice of inquiry.
A notice of inquiry to be served under subsection (2) shall—
specify the subject-matter of the inquiry in the form of a charge or charges for a disciplinary offence or offences;
state the date, time and place at which the inquiry is proposed to be conducted; and
be accompanied by a copy of the Ordinance and this Regulation.
Before or at any stage of an inquiry, a Disciplinary Board may, on its own motion or on the application of any party, adjourn the inquiry to such date as the Disciplinary Board thinks fit.
The Disciplinary Board shall, in ordering an adjournment under subsection (1), have regard to the submissions, if any, of the parties to the inquiry in relation to the application for adjournment and the effect of such adjournment on the parties.
A Disciplinary Board may, on its own motion or on the application of any party, extend any time in this Regulation on such terms as it thinks fit, except for the time limit within which the Chairman is to fix a date for the conduct of an inquiry.
Each party shall furnish to the secretary, not less than 10 days before the date of the inquiry, 2 copies of each document upon which the party intends to rely at the inquiry and shall at the same time furnish to the other party one copy of each such document.
The complainant or the defendant may at any time give a written notice to the other party requiring that other party to produce any document alleged to be in the custody or under the control of that other party and which is relevant to the inquiry and, on that other party’s failure to produce the document, may prove the contents of the document by any alternative method.
Where before or at any stage of an inquiry it appears to the Disciplinary Board that a notice of inquiry served under section 3 is defective, the Chairman may give directions for the amendment of the notice as he thinks necessary and may also adjourn the inquiry upon such terms as he thinks fit and make orders as to costs (including orders as to costs in favour of either party irrespective of the outcome of proceedings, where in the opinion of the Chairman, the justice of the case requires it).
The Chairman shall not give directions under subsection (1) if, having regard to the merits of the case, he is of the opinion that the required amendment cannot be made without injustice to the defendant.
The secretary shall, as soon as it is practicable after the amendment under subsection (1) of a notice of inquiry, give notice in writing of the amendment to the parties.
A Disciplinary Board shall appoint a person to prepare a verbatim record of the proceedings of an inquiry.
The secretary shall keep the record and the Chairman may furnish a copy of the record on application to him by a party to the inquiry.
If an inquiry is conducted pursuant to a complaint under section 21(1) of the Ordinance and the complainant is absent at the opening of the inquiry, the Chairman shall adjourn the inquiry to a later date.
At the opening of an inquiry and where the complainant is present, the secretary shall read the charge specified in the notice of inquiry.
If the defendant is not present at the opening of an inquiry, the Disciplinary Board may proceed with the inquiry in the absence of the defendant if it is satisfied that the notice of inquiry has been served on the defendant in accordance with section 3.
If the defendant is present at the inquiry, the Chairman shall, immediately after the charge has been read, inform the defendant of his right to cross-examine witnesses, to give evidence and to call witnesses on his behalf.
Where an inquiry is adjourned under section 10(1), the secretary shall serve a notice in writing on the complainant—
informing him that the inquiry has been adjourned because of his absence at the opening of the inquiry; and
requiring him to reply to the Chairman to indicate, before the end of a period specified in the notice, whether he is still interested in proceeding with the complaint against the defendant by himself.
If the complainant replies under subsection (1)(b) that he is still so interested, the Chairman shall fix a new date for conducting the inquiry and inform the complainant and the defendant accordingly.
If the complainant replies under subsection (1)(b) that he is no longer so interested or there has been no reply under that subsection after the end of the specified period, the Chairman shall serve a notice on the Authority informing him about the position of the inquiry and asking him to indicate by reply whether he is prepared to take over the complaint from the complainant.
If the Authority indicates that he is prepared to take over the complaint from the complainant, the Chairman shall fix a new date for conducting the inquiry and inform the Authority and the defendant accordingly.
If the Authority indicates that he is not prepared to take over the complaint from the complainant, the Chairman shall dismiss the complaint.
After the reading of the charge or charges specified in the notice of inquiry, the defendant may object to any such charge on a question of law.
Upon any such objection by the defendant, the other party to the inquiry may reply to the objection and, in such case, the defendant may answer such reply.
If any such objection by the defendant is upheld by the Chairman, the Disciplinary Board shall consider the charge to which the objection relates subject to the objection.
Subject to subsection (2), the complainant shall—
present the case against the defendant;
adduce evidence in support of the case; and
close the case against the defendant.
Where the Authority is the complainant, on the application of the Chairman, the Secretary for Justice may appoint a legal officer within the meaning of the Legal Officers Ordinance (Cap. 87) or a solicitor or counsel to carry out the duties of the Authority in respect of the inquiry. (L.N. 362 of 1997)
At the conclusion of the presentation of the case against the defendant, the defendant may make either or both of the following submissions in relation to a charge in respect of which evidence has been adduced—
that sufficient evidence has not been adduced upon which the Disciplinary Board can find that the facts alleged in that charge have been proved;
that the facts alleged in that charge are not such as to constitute the disciplinary offence charged.
Where a submission has been made under subsection (3), the complainant may make a reply and the defendant may answer such reply.
The Disciplinary Board shall consider and determine whether a submission made under subsection (3) is to be upheld having regard to the reply and answer, if any, made under subsection (4) and shall announce its determination.
If the Disciplinary Board upholds the defendant’s submission in respect of the charge, the Disciplinary Board shall dismiss the charge and record accordingly.
If the Disciplinary Board rejects the submission, the Chairman shall call upon the defendant to state his case.
After stating his case, the defendant may—
adduce evidence in support of his case; and
address the Disciplinary Board once.
Where evidence is adduced by or on behalf of the defendant, the address under subsection (8) may be made either before or after adducing evidence.
At the conclusion of the case of the defendant, the complainant may address the Disciplinary Board in reply—
if evidence has been adduced by or on behalf of the defendant; or
with the special leave of the Disciplinary Board if no evidence has been adduced by or on behalf of the defendant.
The Disciplinary Board may postpone its judgment at the conclusion of the proceedings under section 13.
If the Disciplinary Board postpones its judgment, the judgment shall stand postponed until such future meeting of the Disciplinary Board as it decides, and the Chairman shall announce the decision of postponement in such terms as the Disciplinary Board approves.
Where the Disciplinary Board has fixed the date of the future meeting following the postponement of judgment under this section, the secretary shall, not less than 7 days before the date fixed for the future meeting, serve on the defendant a written notice specifying the date, time and place fixed for the meeting and inviting him to appear at the meeting.
The secretary shall serve a copy of the notice under subsection (3) on the complainant and the Authority where he is not the complainant.
The Disciplinary Board shall consider and determine whether the facts alleged in support of the charge have been proved to its satisfaction and whether the defendant is guilty of the disciplinary offence charged.
Where the Disciplinary Board has come to a decision under subsection (1), the Chairman shall announce the decision of the Disciplinary Board in such terms as the Disciplinary Board approves.
If the defendant is found to have committed the disciplinary offence charged, the Disciplinary Board shall decide whether or not to take disciplinary action against the defendant at the same time as the judgment is announced.
If the Disciplinary Board postpones a disciplinary action, the disciplinary action shall stand postponed until such future meeting of the Disciplinary Board as it decides, and the Chairman shall announce the decision of postponement in such terms as the Disciplinary Board approves.
Where the Disciplinary Board has fixed the date of the future meeting following the postponement of disciplinary action under this section, the secretary shall, not less than 7 days before the date fixed for the future meeting, serve on the defendant a written notice specifying the date, time and place fixed for the meeting and inviting him to appear at the meeting.
The secretary shall serve a copy of the notice under subsection (3) on the complainant and the Authority where he is not the complainant.
At a meeting of the Disciplinary Board at which the disciplinary action to be taken against a defendant is to be decided—
the secretary shall produce the records of any meeting of the Disciplinary Board at which a decision on disciplinary action was previously made in respect of the defendant; and
before the Disciplinary Board decides the disciplinary action, the defendant may address the Disciplinary Board by way of mitigation and may adduce evidence as to—
the circumstances leading to the charge being decided and to any such decision referred to in paragraph (a); and
the character and antecedents of the defendant.
The Disciplinary Board shall decide the disciplinary action to be taken against the defendant having regard, inter alia, to—
any decision on disciplinary action previously made in respect of the defendant;
the address of the defendant and the evidence adduced under subsection (1)(b); and
any other information it considers relevant.
The Chairman shall announce the decision of the Disciplinary Board in such terms as the Disciplinary Board approves.
A witness shall be examined by the party calling him and may then be cross-examined by the other party.
A witness may be re-examined by the party calling him but only on matters arising out of his cross-examination by the other party.
The Disciplinary Board may decline to admit the evidence of any deponent to a document who is not present for, or who declines to submit to, cross-examination.
The Chairman, and members of the Disciplinary Board through the Chairman, may put such questions to the parties or to any witness called by a party as they think desirable.