JUDGMENT

AV Winslow J:

The validity of the plaintiffs' claim against the defendants, for professional services rendered, in the sum of $106,250 being 85% of the value of work completed by them upon a quantum meruit basis is challenged by the defendants on a number of grounds, the chief one of which is that the contract upon which the claim is based is an illegal one and therefore unenforceable.

The plaintiffs claim is made by them under O. XV r. 12(1) in a representative capacity as partners of the firm of J Roger Preston and Partners, a firm of Consulting Mechanical and Electrical Engineers practising in Hong Kong and to dispose of an objection raised against the claim on the ground that the plaintiffs were not parties to the said contract and that accordingly have no cause of action I would hold that I am satisfied on the evidence that they properly appear in a representative capacity on behalf of the whole firm of J Roger Preston & Partners of whom they themselves are now partners and that they had been so authorized to represent the partnership, at least by two of the partners from London who paid a visit to Hong Kong in connection with the funeral of Mr. JN Buss, senior partner of the firm who died in June 1972. Mr. Buss was at the time of the signing of the contract the only resident partner in Hong Kong, the remainder being residents in London. The plaintiffs who had been associates in the firm of J Roger Preston & Partners, previously, became, partners after the death of Mr. Buss and are still partners being the only partners who are resident in Hong Kong. In so far as is known all the remaining partners are resident in London. I am satisfied that they represent the partnership and that they and the persons represented have the same interest in the proceedings. The objection to their acting as plaintiffs in this action accordingly fails.

The crucial issue for determination accordingly, as I have already stated earlier, is whether the contract of 17 July 1971, whereby the defendants (as owner) in respect of the proposed Sheraton Hotel project at the junction of North Bridge Road and Coleman Street purported to appoint the firm of J Roger Preston & Partners of Hong Kong to be the mechanical and electrical consultants thereof, is illegal in itself and accordingly unenforceable. It should be noted that the appointment of the firm is conditional upon the senior partner's taking personal charge of the duties and obligations of the firm relating to the project together with certain senior engineers whose duties are specified as well as other necessary 'supporting staff'. The scope of the services to be rendered by the firm is set out in detail in cl. 2 of the contract including:

(1) Services relating to the pre-construction phase involving what may briefly be described as the design stage including preparation and submission of all plans and drawings with calculations for the approval of the appropriate authority for which 50% of the total agreed fee $250,000 would be paid.

(2) The actual construction stage involving the supervision of construction work including the work of successful contractors after tenders have been invited and a decision taken by the owner thereon for which the balance of 50% of the total fee would be paid in instalments.

In deciding whether a contract is illegal in itself a distinction must be made between contracts which are illegal as a result of their prohibition by statute and contracts which are illegal at common law. In the present case it is alleged that the contract is illegal because it is prohibited by the Professional Engineers Act (Cap. 225, 1970 Edn.) which came into force on 2 January 1971.

Such prohibition by statute can be either express or implied. Re Mahmoud and Ispahani [1921] All ER Rep 217 is an example of express prohibition. In that case, the statutory order in question provided that no one should buy or sell linseed oil without a licence. Although the plaintiff had a licen