Fong Chee Keong v Professional Engineers Board, Singapore

• Jurisdiction: Singapore
• Judge: Lee Seiu Kin J
• Judgment Date: 05 April 2016
• Neutral Citation: [2016] SGHC 54
• Year: 2016
• Date: 05 April 2016
• Published date: 12 April 2016
• Hearing Date: 25 January 2016
• Plaintiff Counsel: The appellant in person
• Citation: [2016] SGHC 54
• Defendant Counsel: Lim Wei Loong Ian and Lim Wei Wen Gordon (TSMP Law Corporation)
• Court: High Court (Singapore)
• Docket Number: Tribunal Appeal No 11 of 2015

Lee Seiu Kin J:

This is an appeal against the finding of the respondent, the Professional Engineers Board, Singapore (“PEB”), that the appellant, Mr Fong Chee Keong (“Fong”), was guilty of a disciplinary charge. The PEB cancelled his registration as a professional engineer and ordered him to pay $10,000 as costs of the disciplinary proceedings. The disciplinary charge arose from a complaint in relation to Fong’s conviction under s 57(1)(k) of the Immigration Act (Cap 133, 2008 Rev Ed), for making false statements to immigration authorities. At the conclusion of the hearing, I upheld the finding of guilt but reduced the penalty from cancellation of registration to two years’ suspension from practice. I also upheld the costs order against him. I now give the reasons for my decision.

Background and facts

Fong is a registered professional engineer. On 18 July 2013, he was convicted under s 57(1)(k) of the Immigration Act for making false statements to immigration authorities in an attempt to obtain a visit pass for a female Chinese national, with whom he was in an intimate relationship. He also faced three other criminal charges which were taken into consideration, and was sentenced to four weeks’ imprisonment. Fong did not appeal against the conviction and sentence. The PEB subsequently received a complaint pertaining to Fong’s conviction and instituted disciplinary proceedings against him.

On 4 December 2014, the PEB sent Fong a notice informing him of the disciplinary proceedings and the charge levelled against him.

The disciplinary charge read:

That you, Er. Fong Chee Keong … a Professional Engineer registered under the provisions of the Professional Engineers Act (Cap 253), are charged that you, on 18 July 2013, were charged and convicted of a criminal offence under Section 57(1)(k) of the Immigration Act (Cap 133, 2008 Rev Ed) and punished with 4 weeks’ imprisonment under Section 57(1)(vi) of the said Act, in that you, on 4 July 2012, did attempt to obtain a Visit Pass for one Tang Qiuxia, a People’s Republic of China national, by making false statements in her application for Visit Pass submitted online through the Electronic Visit Pass (Long Term) System, to wit, by stating in the Visit Pass online application that:

a) Tang Qiuxia had been staying at ‘Apt Blk 351 Canberra Road #03-299 Singapore 752351’ for ‘1 month’ since 4 June 2012; and b) Tang Qiuxia was pregnant and that her ‘Expected Delivery Date’ is ‘30.01.2013’

which statements you knew to be false, and by reason whereof you are in contravention of Section 31G(1)(a) and/or Section 31G(1)(b) of the Professional Engineers Act (Cap 253), and/or in contravention of Rule 2(1) of the Professional Engineers (Code of Professional Conduct and Ethics) Rules (the “Rules”) by virtue of your contravention of Provision 2(1) of Part I of the Schedule to the Rules (i.e. the Code of Professional Conduct and Ethics), which are punishable under Section 31G of the Professional Engineers Act (Cap 253).

[emphasis in original]

On 23 December 2014, the PEB sent Fong a further notice requiring him to attend a disciplinary hearing on 20 January 2015 at 9.30am.

On the eve of the scheduled hearing, 19 January 2015, the PEB received a letter from Fong stating that he would be overseas and requesting that the hearing be postponed to the fourth quarter of 2015. The PEB postponed the hearing, but only to 25 February 2015 at 9.00am, for Fong to make the necessary travel arrangements to attend. This was communicated to Fong in a letter dated 21 January 2015. The letter also notified Fong that the PEB’s disciplinary committee (“DC”) may proceed with the hearing in his absence under r 31(2) of the Professional Engineers Rules (Cap 253, R 1, 1990 Rev Ed) (“PE Rules”), and enclosed documentary evidence which the PEB intended to adduce in support of the disciplinary charge. This included Fong’s criminal charge sheets, statement of facts, registrar’s certificate on his criminal charges, and an Immigration and Checkpoints Authority (“ICA”) press release detailing the circumstances of Fong’s offences. Copies of the letter and documentary evidence were also emailed to Fong on 22 January 2015.

On 25 February 2015, the day of the postponed hearing, Fong sent the PEB an email at 9.07am stating that he was unable to attend as he was involved in a traffic accident. He enclosed an email purporting to be from “SPF_Electronic_Police_Centre@spf.gov.sg” which confirmed receipt of his police report, report no. “E/20150225”. Fong requested another postponement to 29 April 2015 as he would be overseas from early March 2015. The PEB was unable to confirm the authenticity of Fong’s police report at the time as the report number provided was incomplete, and the DC decided to proceed with the hearing in his absence. After the DC heard the PEB’s submissions, it adjourned the hearing to 2 June 2015 at 9.30am to give Fong one more opportunity to respond to the disciplinary charge against him. Subsequently, the PEB managed to obtain a police report which revealed that the alleged traffic accident occurred on 16 February 2015, and not on 25 February 2015 as Fong had sought to imply.

On 9 April 2015, the PEB sent Fong a notice to inform him of the further hearing date. A copy of the said notice was also emailed to Fong on 20 April 2015. The PEB also claimed to have emailed Fong soft copies of all its written submissions, bundle of documents and bundle of authorities referred to at the 25 February 2015 hearing. However, Fong denied receiving them all.

On 1 June 2015, the day before the further hearing date, Fong sent the PEB another email at 3.10pm enclosing a medical certificate and stating that he would not be able to attend the hearing on 2 June 2015.

On 2 June 2015, the DC decided to proceed with the hearing in Fong’s absence on grounds that: The substance of the disciplinary charge was uncontroversial. It was clear from the documentary evidence that Fong was convicted of the said criminal charge and sentenced to four weeks’ imprisonment. Fong had been given two opportunities to respond to the disciplinary charge but “had chosen not to attend the proceedings”.

The DC found Fong guilty of the disciplinary charge as he had acted dishonestly with the intention to deceive the ICA, and made the following orders: Fong’s registration as a professional engineer was to be cancelled. Fong was to pay $10,000 for costs of the disciplinary proceedings against him.

Grounds of appeal

Fong brought the present appeal under s 31H of the Professional Engineers Act (Cap 253, 1992 Rev Ed) (“PE Act”), and sought to set aside the entirety of the DC’s decision. Broadly speaking, this was an appeal against both the finding of guilt and the punishment imposed.

Fong tendered lengthy and comprehensive written arguments in support of his appeal. His key grounds can be summarised as follows: There had been a breach of natural justice in the conduct of proceedings. The disciplinary charge was not made out. In the event the conviction was upheld, the sentence imposed by the DC was manifestly excessive.

With regard to the first ground, Fong contended that: He was denied the opportunity to be heard. He was not provided with the relevant documents in respect of the disciplinary proceedings.

With regard to the second ground, Fong contended that: The relevant limb under s 31G(1)(a) of the PE Act, on which his disciplinary charge was based, should be “has been convicted of any offence involving fraud, dishonesty or moral turpitude … which makes him unfit for his profession” (emphasis added). In any case, his conviction was not of an offence involving fraud, dishonesty or moral turpitude. Even if his conviction was of an offence involving fraud, dishonesty or moral turpitude, the offence was not one which makes him unfit for his profession.

Before examining these grounds of appeal, it is perhaps appropriate to first outline the powers of this court in hearing appeals arising from decisions of the PEB’s disciplinary committees.

The role of this court

The High Court generally has broad powers of rehearing in the exercise of its appellate jurisdiction (see s 22 of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)). The court’s role in this appeal is set out in s 31H(1) and s 31H(3) of the PE Act:

Appeal against order by Disciplinary Committee

31H. — (1) Any person aggrieved by a decision of the Disciplinary Committee referred to in section 31G(2), (3) or (4) [an order of the DC] may, within 30 days after the service on him of the notice of the order, appeal to the High Court against the order.

…

(3) In any appeal to the High Court against a decision referred to in section 31G(2), (3) or (4), the High Court shall accept as final and conclusive any finding of the Disciplinary Committee relating to any issue of ethics or standards of professional conduct unless such finding is in the opinion of the High Court unsafe, unreasonable or contrary to the evidence.

[emphasis added in italics and bold italics]

In exercising the Court’s appellate jurisdiction, therefore, the critical question before me in this matter is whether or not the DC’s findings relating to issues of ethics or standards of professional conduct were “unsafe, unreasonable or contrary to the evidence”.

Guidance may be obtained from cases that deal with s 46(8) of the Medical Registration Act (Cap 174, 2004 Rev Ed) (“MR Act”), which the wording of s 31H(3) of the PE Act substantially mirrors. The section reads:

In any appeal to the High Court against an order referred to in subsection (6) [an order of the Disciplinary Committee], the High Court shall accept as final and conclusive any finding of the Disciplinary Committee relating to any issue of medical ethics or standards of professional conduct unless such finding is in the opinion of...