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Chan v Attorney General [2018] SBHC 101; HCSI-CC 212 of 2014 (4 December 2018)

HIGH COURT OF SOLOMON ISLANDS


Case name:
Jui Hui Chan v Attorney General


Citation:


Date of decision:
4 December 2018


Parties:
Jui Hui Chan, JC Professionals Limited v Attorney General, Joyce Qalo, Attorney General, Valuers Association of Solomon Islands


Date of hearing:
14 August 2018


Court file number(s):
CC 212 of 2014


Jurisdiction:
Civil


Place of delivery:



Judge(s):
Keniapisia PJ


On appeal from:


Order:


Representation:
Mr. D Nimepo for the first and second Claimants
Ms. L Fineanganofo for all the Defendant.


Catchwords:



Words and phrases:


Legislation cited:
Valuers Act 2009, Valuers Amendment Act of 2016


Cases cited:
Khan v Attorney General

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION


Civil Case No. 212 of 2014


JUI HUI CHAN
(Also Known as Jared Chan)
First Claimant


JC PROFESSIONAL LIMITED
(Trading as JC Valuer)
Second Defendant


ATTORNEY GENERAL
(Representing Valuers Board)
(First Defendant)


ATTORNEY GENERAL
(Representing Valuers General)
Second Defendant


JOYCE QALO
(The chairperson of the Valuers Board)
Third Defendant


VALUERS ASSOCIATION OF SOLOMON ISLANDS
Fourth Defendant


Date of hearing: Trail by written submissions only 14 August 2018
Date of the Judgment: 4 December 2018


Mr. D Nimepo for the First and Second Claimants
Ms. Fineanganofo for the all the Defendant

JUDGMENT

Introduction

  1. KENIAPISIA; PJ: My brother judge Faukona delivered a decision on 25/08/2016. Aggrieved by the decision, Attorney General for the 1st – 4th defendants, appealed to the Court of Appeal. Court of Appeal delivered judgment dated 5th May 2017. Court of Appeal set aside Faukona J decision and ordered High Court to re-hear the judicial review claim. And that the case should progress to trial in the usual way, unless High Court decides otherwise.
  2. My brother judge, Brown sitting on 15th February 2018 ordered that trial be made by filing of written submissions only. Order by Brown J, relevantly states:
  3. The “hearing result form” shows Counsel Fineanganofo attended for the Attorney General (AG). Counsel Nimepo for the claimants, did not appear. However counsel Nimepo filed written submissions on behalf of first and second claimants on 8/03/2018. Counsel Fineanganofo did not file submissions, until 24th July 2018, motions day. And so I made further orders compelling AG to file and serve final trial written submissions by 21/08/2018[1]. My order[2] also said that whether or not AG has filed written submissions, court will consider judgment on submissions that are already on file[3]. In writing my judgment, by end of October 2018 (29/10/2018), I emailed through Deputy Registrar, to give AG, a last 14 days to file written submissions. Nothing came through. I still consider AG’s written submission before Faukona J. In terms of materials; nothing new was filed in court after AG’s submission, before Faukona J.

Background Facts

  1. Let me set the scene first by outlining the background facts. Mr. Chan is from Malaysia, or a foreign national. Mr. Chan holds Australian qualification[4] in Business, Property from Royal Melbourne Institute of Technology. Prior to the 2009 Act[5] Mr. Chan was practicing as a Valuer in Solomon Islands. There are evidences on this. The best evidence on this is the First Meeting Minutes of the Valuers Board, held on 22/10/2013. The Minute shows that “all practicing Valuers” (a list of them) was before the Board for consideration on 22/10/2013. The “list of Valuers” consisted of practicing Valuers who under the 2009 Act, must be registered and licensed by the Board, in a legislative move to regulate the profession of Valuers in Solomon Islands. In the list were Mr. Hikimae and Mr. Chan; being amongst the “practising valuer applicants” for “registration and license” to be considered by the Board.
  2. The 2009 Act came into force on 26th September 2012. Mr. Chan applied to the Board to be registered and licensed as a Valuer on 28th August 2012. Because of prolonged delay, Mr. Chan’s application was considered by the Board on 22nd October 2013. Mr. Chan was amongst the group or in the “list of practising Valuers”, who were being considered for approval and “registration and license” at the First Board Meeting held on 22/10/2013.
  3. The said Board Meeting Minutes says that all the Valuers in the list were approved the “list of Valuers” who were practicing before the 2009 Act came into force. The “list of practising valuers” also has Mr. Chan and Mr. Hikimae. These were the only two (2) practicing Valuers, whom the Board declined to approve. The main reason Board declined these 2 Valuers was because, the Board was concerned about the substandard performances of these 2 Valuers. The Minutes says there was a case in which Mr. Chan had under estimated a value. The relevant Minute stated – “Chairperson voiced Jared Chan’s case of sub-standard performance (under-estimation of value). The same found with Hikimae as mentioned by Greg”[6]. The Minute continues –“Jared Chan and John Hikimae were highlighted as incapable and not to be registered. Both performances in the profession were substandard (under estimation of value and limited academic qualification based)”[7].
  4. As a result; the “list of practising Valuers” before the Board was approved, except for Mr. Chan and Mr. Hikimae. For Mr. Chan, the Board wanted further information. Board insisted on further verification checks and information. And then at the next meeting Board will decide on Mr. Chan’s application. It is not entirely clear from the Minutes what information must be checked for.
  5. By letter dated 15/07/2014, Chairperson wrote to Mr. Chan after the meeting, stating the further information that the Board wanted from Mr. Chan academic transcript, work permit and overseas work experience. By letter dated, 28/07/2014, Mr. Chan supplied the requested information. Board Chairperson wrote back by letter dated 30/08/2014, responding to acknowledge the documents Mr. Chan supplied were received. In the same letter of 30/08/2014, the Chairperson turned around and requested that Mr. Chan apply for “Temporary Registration”. Whether this is a requirement by the Board is a matter I will deal with later. For now I just want to outline the backgrounds facts. Mr. Chan responded by letter dated 29/09/2014, expressing alarm at delay and opposing to apply for “temporary registration”.
  6. Mr. Chan refused to apply for “Temporary Registration”, in the same letter of 29/09/2014. And then the issue was left at that. The decision on Mr. Chan’s application which Board deferred pending further information, is still alive and pending in 2018, since 29/09/2014. Meantime a decision in this case is also pending, after Court of Appeal judgment in May 2017.
  7. The facts also showed that the application for “Temporary Registration”, was like a second time that the Board has called upon Mr. Chan to apply for registration. The first time was the application on 28/08/2012, which the Board considered together with the “list of practising Valuers” at the 22/10/2013 First Board Meeting.

Issue (s) for determination

  1. Having read the previous judgment of this Court. Having read the materials. Having read the Court of Appeal judgment, I will endeavour to identify the issue (s) for determination as follows:-
Special treatment and priority to register and license practicing Valuers in Solomon Islands automatically under the “transitional and deeming” provisions of Section 39 of the 2009 Act
  1. Evidence has disclosed that Mr. Chan has been practicing as a Valuer in Solomon Islands, prior to the commencement of the 2009 Valuers Act[8]. The said Act came into force on 27/09/2012. The First Valuers Board Meeting took place on 22/10/2013, about a year after the commencement of the 2009 Act. The main business of the meeting was to decide on a “List of practising Valuers” to be registered and licensed under the 1 year “transitional and deeming provisions” of the 2009 Act. The “List of practising Valuers” before the Board for registration under the “transitional and deeming provisions” of the Act consisted of practising Valuers from both the public and private sector. The “list of Valuers” consisted of persons who had been practising as Valuers in Solomon Islands, before the commencement of the 2009 Act on 27/09/2012. Under the 2009 Act, practicing Valuers are required to be registered and licensed by the Valuers Board of Solomon Islands. Under the “deeming and transitional provisions” of Section 39 (1) of the 2009 Act, “practicing Valuers” are given priority and special treatment to be registered and licensed as a valuer automatically. So the “list of valuers” for registration before the Board were “practicing valuers” immediately before the 2009 Act came into force. In that “list of practising valuers” was Mr. Chan. This is best conclusive evidence, that Mr. Chan was a “practicing valuer” immediately before the commencement of the 2009 Act. The prominent distinguishing feature for Mr. Chan is, he was a foreigner.
  2. The next pertinent question is, “Mr Chan being a “practicing valuer foreigner”, how should he be registered under the 2009 Act”? Or “What provisions in the 2009 Act would apply to Mr. Chan’s registration?” And that the Board was obliged to adhere to, in considering Mr. Chan’s case/application for registration and license?
  3. I begin answering this question by looking at the objective of the 2009 Act. Prior to 2009, the profession of Valuers had been largely, unregulated. So the 2009 Act was a regime intended to regulate and better manage the profession of Valuers in this country. Regulatory bodies established are Valuers Board and Valuers Association of Solomon Islands. These bodies are charged with functions and powers to: register Valuers; imprint discipline in the profession; regulate professional standards and practice and administer other related matters. It would be correct to say that the Act was a regime to improve and better manage the professionalism of Valuers work in Solomon Islands. One way to achieve this objective is through registration and/or licensing of Valuers.
  4. Talking about improving and better managing the profession, the prime target group for the new law were the “practicing Valuers” at commencement of the 2009 Act. And in the court’s view that prime target group were afforded “priority and special treatment” in terms of their registration and licensing. That “priority and special treatment”, I prefer to call it “automatic registration and license”, under the “transitional and deeming provisions” of Section 39 (1) of the 2009 Act. Even the Board acknowledged this intention of the new legal framework. For by letter dated 15/07/2014, Chairperson of the Board wrote to Mr. Chan after the First Board meeting and say:-
“And also for the Valuers Board to pertain to your work permit and the valuers Act 2009 of which registration will be applicable to you”[9] (underline my own emphasis).
I found this letter from the Chairperson to be consistent with the First Board meeting deliberations. And consistent with the “transitional or deeming provisions” of Section 39 (1) because Mr. Chan was a practicing valuer, though a foreigner, at the commencement of the 2009 Act. There is no distinction to be placed upon being a foreigner practicing valuer under the “transitional and deeming provisions” of Section 39 (1) “automatic registration and license”.
  1. The first meeting of the Board deferred a decision on Mr. Chan’s application wanting further information on 3 things - academic transcript, work permit and overseas prior work experience. By letter dated 28/07/2014, Mr Chan responded and it seemed had supplied the information Board requested. At that point; consistent with the first Board meeting resolution, the Board should now make a decision on Mr. Chan’s application, because Mr. Chan had been a practicing Valuer at the commencement of the 2009 Act. And was eligible to “automatic registration and license” under Section 39 (1) of the 2009 Act. There is no distinction on being a foreigner practising valuer under Section 39 (1).
  2. Instead an interesting new twist came about when in a letter from Chairperson dated 30/08/2014, Mr. Chan was being called upon to apply for “temporary registration”. To this new twist, Mr. Chan was not interested and he never applied for “temporary registration” since. To this day, Mr. Chan is still waiting for his first application that was considered at the first Board meeting (with the “list of practising Valuers”) for automatic registration and license under the “transitional and deeming provisions” of Section 39 (1), (2) and (3).
  3. Not only is this new twist interesting but has no basis in the Board’s decision, deferring Mr. Chan’s registration on 22/10/2013. This new twist letter, I found to be inconsistent with the Board resolution from the first Board meeting. The only reason the Board deferred a decision on Mr. Chan’s “automatic registration and license” is because the Board had a concern about Mr. Chan’s capability to work as a Valuer, because Mr. Chan and Hikimae were found to have under estimated valuation work in the past. The Board called this “sub-standard performances”; in Mr. Chan’s previous valuation tasks. As a result the Board deferred Mr. Chan’s registration and called for academic transcript, work permit and overseas prior work experience. Chairperson acted outside of the Board’s decision in calling for “temporary registration”. And I can quash that decision now, because it was the Board and the Board alone that has power under the 2009 Act to decide on “registration and license”. And the Chairperson was bound to implement the decision of the Board, not her own. The Board’s decision was to defer Mr. Chan’s application to check on 3 matters only. Having got information on those 3 matters, the Board was then obliged to go back and decide on Mr. Chan’s application under Section 39 (1), (2) and 3) of the 2009 Act, because Mr Chan, as I found elsewhere above, was entitled to “automatic registration and license”.
  4. There are ways that the Board can decide Mr. Chan’s automatic “registration and license” and accommodate its concern on Mr. Chan’s sub-standard performance. One way would be for the Board to approve Chan’s “registration and license”, with certain conditions[10] that will address the Board’s concern on sub-standard performance. This is the kind of problem (sub-standard work by Valuers) that was intended to be improved upon in the profession with the introduction of this new regime. That there is a “referee[11]” overseeing the work of Valuers; to ensure adherence to accepted standards.
  5. The materials disclosed that after the first meeting of the Board, Mr. Chan was also called upon to fill in a form for “temporary registration”. And AG’s submission before Judge Faukona was that the 2016 Amendment to the 2009 Act, says that Mr. Chan is not a citizen of Solomon Islands and so must apply for “temporary registration” under the 2016 Amendment Act[12]. This submission[13], as, I gathered is based on opinion from the Attorney General. This opinion is flawed in law for 2 reasons. Firstly the first meeting of the Board clearly say Mr. Chan’s application will be considered under the 2009 Act[14]. I read the Minutes many times and there was no talk of Mr. Chan’s “registration and license” to be made under 2016 Amendment Act. In fact and in law, the 2016 Amendment Act did not exist at the first Board meeting. I read the Minutes many times and there was no talk about deferring Mr. Chan’s application to get legal advice from AG. There is no need to seek advice from AG, because the Board already has the benefit of a legal expert. Mr. Anthony Makabo is a Board Member and is from AG. My experience says that when a lawyer sits on the Board, he directs the work of the Board on legal issues to allow for an efficient discharge of Board functions. You do not have to wait for advice from AG for many months and years. This is inefficiency of Board functions. Even if a legal advice comes from the AG, it is the Board that must make a decision. I have not seen any Board meeting minute that says Mr. Chan’s registration and license must be made under the 2016 Amendment Act.
  6. Secondly the 2016 Amendment Act does not apply to Mr. Chan’s “registration and license”. To insist on its applicability to Mr. Chan’s application is flawed in law. For an Act will prima facie deal with future and not past events. If this were not so, the Act might annul rights already acquired. The case of Khan relevantly states:-
“There can be no doubt that the rule is that the natural and ordinary way to regard statute is that they affect something in the future and not affecting what has gone before”[15].
  1. I turn to consider Mr. Chan’s “automatic registration and license” under Section 39 (1) of the 2009 Act. I am satisfied as I discussed elsewhere above that Mr. Chan was eligible to “automatic registration and license” under the “deeming and transitional provisions” of Section 39 (1), just like all those in the “List of practising Valuers” approved by the Board, at the first meeting. Mr. Chan had made application well before the 12 months of the commencement of the Act. Mr. Chan applied on 28/08/2012. The Act came into force on 26/09/2012. Application serves the purpose in Section 39 (2) – practising valuer to apply in 12 months of commencement of the Act. Section 39 (3) a practising valuer who do not apply within the 1 year period is not entitled to automatic “registration and license” under Section 39 (1). Mr. Chan’s name was in the “list of practising Valuers” before the Board, which were beneficiaries under the “deeming and transitional provisions” of Section 39 (1) “automatic registration and license”. Mr. Chan does not have to apply through some kind of forms. There was none. At the first meeting the Board was still trying to decide on forms[16]. What was important for Mr. Chan’s registration and license is he was in the “list of practising Valuers”, who were eligible for automatic registration and license. If the others on the list were approved; there was no reason under Section 39, Mr. Chan could not be registered and licensed.
  2. I can make the order that Mr. Chan is eligible to “automatic registration and license” under Section 39 (1) of 2009 Act. This is consistent with the Board’s decision at the first Board meeting in 2013. This is also consistent with the letter and spirit of the law in the 2009 Act (Repeat paragraphs 14 - 22 above). The Board can attach conditions to Mr. Chan’s registration and license as a way to improve standard of practice in the profession; under Section 10 of 2009 Act. That is the work of the Board not this Court. Mr Chan is entitled to “automatic registration and license” and there is no more pre-requisite like, temporary registration application or have to fill a form or that he is a foreigner and must apply for “temporary registration.” I repeat Mr. Chan is entitled to automatic “registration and license” under Section 39 (1) of 2009 Act. The said provision is very clear and nothing else can be added to it. It says clearly with no more room for doubt that “All practising valuers in Solomon Islands are deemed to be registered and licensed at the commencement of the Act”. Deemed means what? Deemed means to “regard or consider in a specified way”[17]. So the specified way parliament had considered in the 2009 Act was to “automatically register and license” all practising valuers in the country at the commencement of the 2009 Act”[18]. There are pre-requisites like applying under Section 39 (2) of the 2009 Act (within the first 1 year of the 2009 Act) and supplying of information to the Board. But at the end of the day; the Board is bound to register and license “practising valuers automatically” under Section 39 (1); once the pre-requisites are met.
  3. It seems to me that the Chairperson was so paranoid about a foreigner been admitted to practice in Solomon Islands – automatic registration and license. I would imagine a foreigner practicing in Solomon Islands is not a bad thing at all. It is good for the profession. And the Board or Valuers Association, should the foreigner be doing anything disastrous to the profession, have the power to address this, through annual licensing of Valuers, like issuing of annual practicing certificates or imposing conditions. This is what happens in the legal profession. Lawyers get admission once. But then through licensing annually, the licensing body monitors the lawyers’ performance, for renewal of practising certificates in the next following year.

Provisions of 2009 Act that should not apply to Mr. Chan

  1. Before I make the orders; I wish to put to rest provisions that do not apply to Mr. Chan’s “automatic registration and license” on the commencement of the 2009 Act. Like I say elsewhere above, “temporary registration” does not apply to Mr. Chan. Section 13 on “temporary registration” apply to foreigners, who were not on the “list of practising valuers[19]” but may come into the country after the 2009 Act and be required to undertake valuers work. This happens in every profession to accommodate overseas expertise to benefit the local profession and industry users. In the legal profession for instance, we have lawyers from overseas given temporary/provisional practicing certificate, to do a certain case. And they can then go away. Overseas lawyers I know bring benefits to the local profession – skills, knowledge and expertise. I do not think this will be any different in the valuers’ profession.
  2. Section 10 (1) of 2009 Act apply to Mr. Chan’s application and has satisfied all 3 requirements under Section 10 (1) (a) – (c). There are no facts before the Board and not discussed by the Board that Mr. Chan is not qualified for automatic “registration and license” under Section 39 (1). Section 10 (1) does not override Mr. Chan’s automatic “registration and license” under Section 39 (1) because he has met all the 3 criteria in Section 10 (1) (a) – (c); on the facts before me or the Board. I repeat the only reason Mr. Chan’s application was deferred was due to Board’s concern on past sub-standard performance. From this concern Board had requested further information. And requested information were already given.
  3. There is no need or legal requirement for Mr. Chan to apply using some kind of forms. As I found above, at the first Board meeting, “Forms” was still being looked at for use under the new Act. What was before the Board for approval was a “list of practising Valuers” who were entitled to automatic “registration and license” under Section 39 (1). And those in the “list of practising valuers” have made applications of some sort to be on the list. For Chan’s case; he applied by letter dated 28/08/2012, supplying documents. That is sufficient for purpose of application under Section 39 (2), for registration and license[20], because Mr. Chan was eligible to automatic “registration and license”, just like the rest of those “practising valuers” on the list who were approved by the Board under Section 39 (1) – automatic registration and license, by virtue of being a practising valuer.
  4. Section 14 does not impede Mr. Chan’s application either. Section 14 apply to new applicants who “were not practicing valuers” at commencement of the 2009 Act. Mr. Chan was a “practising valuer” and entitled to automatic “registration and license” along with the others on the list before the Board at the first Board meeting. Consistent with what I say in paragraph 27, Mr. Chan had applied under Section 39 (2)[21], - a pre-requisite for “automatic registration and license” under Section 39 (1). As I gather from the Minutes, there was a “list of practising valuers” who were entitled to automatic registration and license. And Board had approved that list, except Mr. Chan and Mr. Hikimae. Mr. Chan being on that list should not be treated any different just because he was a foreigner. Board did not treat him differently, on its Minutes. Board had a concern and deferred a decision. When Board was supplied with requested information, Board was obliged to decide on Chan’s “automatic registration and license”. Pre-requites for automatic registration and license under Section 39 are: a practising valuer is deemed to be automatically registered and licensed (Section 39 (1)); the practising valuer must apply in 12 months of commencement of the Act (Section 39 (2) and (3)). Evidences, as I discussed elsewhere above, supports strongly that Mr. Chan has passed all these pre-requisites.

Conclusion and Orders

  1. In view of the reasons espoused in this judgment, Court will make the following orders:-

THE COURT
............................
JOHN A. KENIAPISIA
PUISNE JUDGE

[1] Counsel Rose Mary Soma from AG was at motions day on 24/07/2018; when compelling orders were made.
[2] Order of 24/07/2018 was perfected on 1/08/2018.
[3] AG’s submission before Faukona J is already on file. I considered it in this judgment.
[4] Bachelor Degree.
[5] Valuers Act 2009 (No. 4 of 2009).
[6] Minutes No 3 (v) at page 3 of First Board Meeting exhibited as Exhibit JG 2 of statement by Joyce Galo filed 18/02/2015.
[7] Minutes No 3 (vi) of page 3, same meeting Minute.
[8] Repeat paragraph 4 above.
[9] Letter in Exhibit JG 3 of statement by Joyce Galo referred above.
[10] Permissible under Section 10 (1) of 2009 Act.
[11] Referee under the 2009 Act is: Valuers Board and Valuers Association established under the 2009 Act.
[12] Section 10 (d) of Valuers Amendment Act of 2016.
[13] See paragraph 18 page 4 of AG’s written submission before Faukona J; by counsel Fineanganofo.
[14] See letter at foot note 9 above.
[15] Khan –v- Attorney General (1984) SBHC 14.
[16] Minute No. 1, at page 1 of Joyce Galo statement – but no clear resolutions was made on forms.
[17] Simple dictionary definition.
[18] Section 39 (1) (2) and (3).
[19] Entitled to automatic registration.
[20] “Registration and License” is the language used in Section 39 (1).
[21] As pre-requisite Mr. Chan applied by letter dated 28/08/2012.

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