Tsang Tak Wai v. Building Authority and Another

[English Translation – 英譯本]

CACV104/2016

[2018] HKCA 169

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 104 OF 2016

(ON APPEAL FROM HCAL 162/2014)

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Before:

Hon Cheung, Chu and Poon JJA in Court

Date of Judgment: 8 March 2018

Date of Judgment: 23 March 2018

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J U D G M E N T

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Hon Chu JA (giving the judgment of the Court):

1.The applicant applied to the Court of First Instance for leave to apply for judicial review against the decision of the Building Authority (the 1st Putative Respondent) to refuse the application made by Credit Engineering Limited (“Credit”) to appoint him to act on its behalf under the Buildings Ordinance, Cap 123 of Laws of Hong Kong. After hearing, Chung J (“the trial judge”) handed down his judgment on 13 April 2016, refusing to grant leave to apply for judicial review, and made a costs order requiring the applicant to pay the costs of the two putative respondents.

2.The applicant lodges this appeal against the trial judge’s judgment.

Requirements under the Buildings Ordinance in relation to application for registration as a registered ventilation contractor

3.The applicant’s intended application for judicial review originates from Credit’s application made to the Building Authority for registration as a specialist contractor (ventilation works) (“ventilation contractor”).  In relation to the requirements and assessment of this type of application, the Buildings Ordinance (“the Ordinance”) has the following requirements.

4.It is provided in section 8B(2) of the Ordinance that an applicant for registration as a specialist building contractor must satisfy the Building Authority of the follow matters:

(1)  if it is a corporation, the adequacy of its management structure;

(2)  the appropriate experience and qualifications of his personnel;

(3)  his ability to have access to plant and resources;

(4)  the ability of the person appointed by the applicant to act for the applicant for the purposes of this Ordinance to understand building works and street works through relevant experience and a general knowledge of the basic statutory requirements.

5.Section 8B(3) of the Ordinance also provides that an applicant for registration as a specialist contractor must satisfy the Building Authority that he has the necessary experience and, where appropriate, professional and academic qualifications, to undertake work in the specialist category.

6.According to section 8B(6), the Building Authority is to refer an application to the relevant Contractors Registration Committee (ie the 2nd Putative Respondent, “the Committee”).  Pursuant to section 8(2), the function of the Committee is to assist the Building Authority in considering applications for inclusion in a register by:

(1)  examining the qualifications of applicants;

(2)  inquiring as the relevant Registration Committee considers necessary to ascertain whether an applicant has the relevant experience;

(3)  conducting interviews with applicants; and

(4)  advising the Building Authority to accept, defer or reject applications for inclusion in the relevant register.

7.In relation to the Committee which considers applications for inclusion in a register of specialist contractors (including ventilation contractors involved in the present case), section 8(3A) and (5) provides that it consists of:

(1)  the Building Authority’s representative

(2)  3 persons, 1 of whom is nominated by each of the Architects Registration Board, the Engineers Registration Board and the Surveyors Registration Board from the lists of authorized persons, registered structural engineers and registered geotechnical engineers; 

(3)  3 persons nominated by The Hong Kong Construction Association Ltd.; and

(4)  2 persons selected by the Building Authority from among persons nominated by such bodies as the Building Authority may think fit;

These people, however, do not include any member of the Authorized Persons’, Registered Structural Engineers’ and Registered Geotechnical Engineers’ Disciplinary Board Panel or member of the Registered Contractors’ Disciplinary Board Panel.

8.It is provided under section 8(6) that the Chairman is to be elected from the members of the Committee other than the representative of the Building Authority.  Section 8(8) provides that a quorum of the Committee is the Chairman, the Building Authority’s representative and three other members of the Committee.

9.In general, an authorized signatory shall represent the applicant applying for registration as a registered contractor and undergo a full-scope interview conducted by the Committee.  At the interview, members of the Committee question the authorized signatory whom the applicant intends to appoint in respect of the six areas  set out in para 3(e), Appendix I to the Practice Note for Registered Contractors 38 (Practice Note 38).  Upon conclusion of the interview, each member gives an individual assessment of the interviewee’s performance in these six areas, and then the Chairman invites all members to vote on the six areas for a final decision. Afterwards, the Committee advises the Building Authority as to whether the application should be accepted, deferred or rejected.

10.Section 9A(1) provides that any person who is aggrieved by a decision of a Committee may appeal to a judge of the Court of First Instance.  It is also provided in section 13A(1) that an applicant for registration, renewal of registration or restoration of his name to a register who is dissatisfied with a decision of the Building Authority may appeal to a judge of the Court of First Instance.  Sections 9A(2) and 13A(2) provide that on an appeal, the judge may confirm, reverse or vary the order made by the Committee or the Building Authority respectively.

Credit’s applications

11.Between 2012 and 2014, Credit made three separate applications to the Building Authority for registration as a ventilation contractor and for appointing the applicant as its authorized signatory and technical director.  The first application was made on 24 April 2012, for which the applicant attended an interview of the Committee on 8 August in the same year.  The Committee unanimously decided that the interview failed and advised the Building Authority to refuse the application.  After consideration, the Building Authority decided to refuse Credit’s application and wrote to notify Credit of its decision and the reasons therefor on 30 October 2012.

12.Credit made the second application for registration as a ventilation contractor and for appointing the applicant as its authorized signatory and technical director.  The applicant attended an interview of the Committee on 26 November 2013.  The Committee unanimously decided that the applicant failed in the interview and advised the Building Authority to refuse Credit’s application.  After consideration, the Building Authority decided to refuse Credit’s application and wrote to notify Credit of its decision and the reasons therefor on 7 February 2014.  The applicant wrote to the Building Department several times to make enquiries and complaints in respect of the refusal of the application and the process of the interview, to which the department did reply.

13.On 17 April 2014, Credit made the third application for registration as a ventilation contractor and for appointing the applicant as its authorized signatory and technical director.  The tenure of office of the Building Authority and other members of the Committee responsible for assessing Credit’s application were from 1 January 2014 to 31 December 2015 and from 1 January 2013 to 31 December 2014 respectively.

14.The applicant attended an interview of the Committee on 27 June 2014.  There were six members responsible for conducting the interview, who were: (i) the representative of the Building Authority, being one of the professional engineers nominated by the Fire Services Department from the discipline of ventilation works who took office by rotation; (ii) a person selected from three persons, one of whom was nominated by each of the Architects Registration Board, the Engineers Registration Board and the Surveyors Registration Board from the lists of authorized persons and registered structural engineers; (iii) two persons selected by the Building Authority from the authorized signatories of registered general building contractors nominated by The Hong Kong Construction Association Ltd; (iv) one person selected by the Building Authority from the persons nominated by The Hong Kong E & M [Contractors’] Association Limited, who was an authorized signatory of a registered ventilation contractor; and (v) one person selected from the persons nominated by the discipline of building services/electrical and mechanical engineering of the Hong Kong Engineers Registration Board, who possessed expertise in ventilation works.  None of these six members had interviewed the applicant in Credit’s first and second applications.

15.The Committee unanimously concluded that the applicant failed in the interview and advised the Building Authority to refuse Credit’s application.  Upon consideration, the Building Authority decided to refuse Credit’s application, and wrote to notify Credit the decision and the reasons therefor on 4 September 2014.

16.After failing in the interview on 27 June 2014 and the refusal of Credit’s application, the applicant wrote to the Buildings Department and other institutions to complain.

The applicant’s application for leave to apply for judicial review

17.On 3 December 2014, the applicant filed a Form 86, applying to the Court of First Instance for leave to apply for judicial review.  It was stated clearly in the form that the application was made against the decision of the Building Authority on 4 September 2014 of not approving the applicant to be an authorized signatory of a registered ventilation contractor.  The applicant asked the court to overturn such decision and to order the Building Authority to accept the applicant as the authorized signatory of Credit.

18.The applicant set out the following grounds for review in the Form 86 to support the application:

(1)  The Committee failed to conduct the interview objectively and fairly.

(2)  The system and arrangements under the Ordinance for the registration of ventilation contractors were unreasonable and unfair, breached natural justice and merely protected the interests of licence holders, leaving the decision on registration applications in the hands of the holders of a pre-existing interest whose decisions were arbitrary.

(3)  The Building Authority has not laid down any assessment criteria for the Committee, with the result that the members could make things difficult for applicants in the interview.

(4)  The Ordinance has established no effective complaint mechanism with “no risk of monetary loss”; and the existing system which involves costly legal litigation deters complaints, which amounts to a breach of natural justice.

19.Subsequently, on 22 July 2015, the applicant filed a Supplementary Form 86 to seek from the two putative respondents the provision of the “complete record of the interview and information relevant to the case” of the Committee.  The applicant further filed a statement to apply for judicial review on 28 July 2015, and a total of nine affidavits were filed separately in support of the application.  The two putative respondents have also filed three affidavits, explaining the background information of the case, the operation of the Committee and the results of the interview after assessment, and also responding to the applicant’s allegations.

20.The trial judge summarised the applicant’s arguments as follows:

(1)  The registration system under the Ordinance was unlawful and unconstitutional.

(2)  The interview procedure adopted by the Committee were not fair.  The Committee members had conflicts of interest and were biased against the applicant.

(3)  The decision of the Committee was neither reasonable nor rational.

(4)  The Ordinance had established no effective or reasonable mechanism for complaints.

Trial judge’s judgment

21.After the hearing, the trial judge handed down his judgment on 13 April 2016, in which he refused the applicant’s leave application and ordered the applicant to pay the costs of the two putative respondents.

22.As to the applicant’s allegation that the registration system under the Ordinance was unlawful and unconstitutional, the trial judge held that the registration system under the Ordinance aimed to enhance the registration mechanism under the Ordinance to ensure and regulate the quality of building contractors so that buildings and construction works meet the requirements of public safety.

23.The applicant has relied on articles 11, 33, 38, 39, 64, 109, 119 and 142 of the Basic Law, and article 6(1) and (2) of Part III of the International Covenant on Economic, Social and Cultural Rights to contend that the Committee should not be composed of people of relevant trades.  The trial judge pointed out that the legislative intent in this regard was: (i) to cover stakeholders in both the public and private sectors of the construction industry as far as possible; (ii) to ensure the participation of people from various trades in the construction industry; and (iii) in respect of the number of members, to avoid monopolies and underhand transactions and other undue influence by individual members.  The trial judge has also pointed out that the registration system and other mechanisms under the Ordinance involved balancing various values and interests in the community, in particular the balance between business operations, freedom to choose occupation and public safety.  It would not be appropriate for disputed matters in this respect to be formulated by the court. These should be discussed and enacted by the executive branch and legislature; and once the law had been enacted, unless it was under extremely unreasonable or unbalanced circumstances, the court should not intervene. There was nothing extremely unreasonable or extremely unbalanced in the provisions in the Ordinance concerning registration of specialist contractors, in particular the part about the Committee.

24.The trial judge found that the registration system under the Ordinance did not involve any improper objective, nor was there any reasonable evidence showing that the Committee members had any improper background or intention.  He therefore held that the Committee appointed pursuant to the Ordinance was not unlawful or unconstitutional.

25.The trial judge did not agree with the applicant’s submission that the “authorized signatory” and “technical director” had no legal status but were only added to the registration system as additional measures by the Building Authority itself, and he pointed out that these persons were appointed to act on behalf of the contractor concerned and the director respectively referred to in sections 8B(2)(d) and 8B(8)(b) of the Ordinance.  Therefore, the Building Authority’s requests in this regard were not unlawful.

26.The applicant complained that the interview procedure was unfair, and the Committee members had conflicts of interest and were biased against him.  After repeatedly listening to the audio recordings of the interview secretly taken by the applicant and read the transcripts of the recordings submitted by the applicant and the two putative respondents respectively, the trial judge found that the members had not used any abusive or inappropriate language, and the circumstances that the applicant complained of, namely member(s) used insulting language, allowed no time for answers, giggled, murmured to themselves, asked completely irrelevant questions, persisted in scolding him, and disturbed and affected the applicant’s emotions and ran out of time for questions, did not occur.

27.The trial judge also held that there was no reasonable evidence showing that the members responsible for conducting the interview had refused Credit’s application due to personal interests or private business interests, or acted unfavourably towards Credit or the applicant out of other personal or improper reasons, or were biased against them. The trial judge did not accept the applicant’s submissions that the Committee members did not have the relevant qualifications or experience and were not of good character and that they were scraping the bottom of the barrel making up the numbers, and found that the applicant did not have reasonable evidence to justify his allegations.

28.As to the applicant’s allegation that the Building Authority had not laid down any assessment criteria for the Committee, the trial judge said it could be seen from Practice Note 38 that the Committee was required to conduct tests and assessments in respect of six specified areas, and the assessment form showed that the Committee had actually conducted an assessment in these six areas.  In addition, the audio recordings and transcripts showed that during the interview, the applicant had more than once failed to refer to the contents of applicable circulars and codes of practice and at the end admitted deficiencies to the Committee.

29.The applicant also complained about the conversation between member B and him on something irrelevant to the assessment. The trial judge found that irrespective of the truthfulness of the explanation given by the putative respondents, there was no reasonable basis for the allegation that the Committee’s decision had been affected by the said conversation.

30.The trial judge, therefore, held that the applicant’s various complaints about the interview procedure and the Committee members were not reasonably arguable.

31.For the same reason, the trial judge also held that the applicant’s allegation that the decision of the Committee was unreasonable or irrational was not reasonably arguable.

32.The trial judge did not agree that the Ordinance had not established any effective and reasonable complaints mechanism, and in his opinion, the applicant and/or Credit should appeal to the Court of First Instance pursuant to section 9A and/or section 13A or the Ordinance.  Nor did he agree with the applicant’s suggestion that the appeal system under the Ordinance was costly, deterred complaints and breached natural justice, and pointed out that judicial reviews also involved costs.  The trial judge accepted that the appeal mechanism under the Ordinance gave the court broad powers.

Applicant’s case in the appeal

33.The applicant has filed one notice of appeal and one supplementary notice of appeal, seeking to have the trial judge’s decision set aside and leave to apply for judicial review. He has also submitted a skeleton submission for the appeal hearing.  He has set out his case in detail in these documents, which may be summarized as follows:

(1)  The trial judge failed to consider the applicant’s educational qualifications and professional qualifications and experience already acquired, and also failed to consider if the Committee members were equipped with the relevant professional qualifications and experience to examine the registration application made under section 8B(1) of the Ordinance.

(2)  The trial judge failed to consider that the Committee had not fully complied with the law and guidelines during the interview and in the course of assessment, and also failed to consider the unreasonable and unnecessary treatment that the applicant had gone through during the interview.

(3)  The trial judge failed to consider that by arbitrarily rejecting the application made by the qualified and experienced applicant and treating him in an unfair and unjust manner, the Committee was ultra vires and acted irrationally.

(4)  The trial judge erred in ruling that the registration system under the Ordinance did not deprive the applicant of the rights  of the freedoms to choose an occupation and run a business.

(5)  The trial judge failed to consider that the putative respondents’ acts had caused the applicant and his company loss of money and time and also mental stress and impairment.

(6)  The applicant’s case was about ultra vires and unlawful acts of the administrative authority, which involved an important public interest, and thus should be exempted from paying the costs of the putative respondents.

Putative respondents’ case

34.Mr Chang, counsel for the two putative respondents, pointed out that the applicant and Credit might appeal pursuant to sections 9A and 13A of the Ordinance to the Court of First Instance against the decision made by the Committee and the Building Authority.  They, however, did not take such course to voice their complaint and the applicant sought leave to apply for judicial review instead, which amounted to an abuse of process, and this point alone justified the court refusing the applicant’s application for leave to apply for judicial review.

35.In response to the applicant’s grounds of appeal, Mr Chang had the following to say:

(1)  The trial judge had given adequate consideration of the applicant’s complaints about the course of the interview and the language and manner of the Committee members, and in his judgment had analysed and thoroughly dealt with them.  It could be seen from the transcripts that the applicant was obviously deficient in answering the Committee’s questions, in that his replies were short of details, which could not demonstrate that he had read the relevant circulars or codes of practice or had sufficient knowledge and understanding of the contents concerned.

(2)  The Committee members gave different ratings in respect of the six areas of assessment, nevertheless, they all considered the interview failed and decided to refuse the application.  This was the professional assessment made by the Committee members, in which the court generally would not intervene.

(3)  The applicant in his submission challenged the qualifications of the Committee members and alleged that the requirements and requests in Practice Note 38 contravened the law. None of this was stated in the Form 86 as a ground to support the application, and hence he could not raise these points in the appeal.  Furthermore, these points were not supported by any reasonable evidence.

(4)  Since the applicant failed in the interview and assessment, the application of Credit was bound to fail.  Even though the applicant possessed educational and professional qualifications, this was irrelevant.

(5)  The trial judge had considered the applicant’s arguments on the right to freedom to choose an occupation and run a business and so on.  The registration system under the Ordinance did not restrict the occupation that the applicant had to undertake, hence there was no contravention of the right to freedom to choose occupation provided for under article 33 of the Basic Law.

(6)  No claim was raised in the Form 86 for loss suffered by the applicant and his company of money and time or for mental stress and impairment, and hence the Court of Appeal should not consider such an allegation.

(7)  The applicant applied for judicial review solely for his own personal benefit.  Even if the application involved public interests, it would be only one of the factors in the consideration of costs.  The trial judge’s costs order was  entirely correct in principle, and there was no room for intervention.

Reason for judgment of this court

37.For an applicant to obtain leave to apply for judicial review, he has to demonstrate his intended application for judicial review is reasonably arguable with realistic prospects of success: Po Fun Chan v. Winnie Cheung (2007) 10 HKCFAR 676.

38.An application for judicial review is relief under the public/administrative law.  In this regard, the clear legal principle is that if the applicant may seek relief through another channel, then unless the circumstances are exceptional, the court is not prepared to exercise its discretion to grant leave to apply for judicial review.  Among the relief, an appeal mechanism provided in law is the most direct one.  Therefore, if an applicant may appeal or use other channels in law to seek relief for the matter against which he intends to apply for judicial review, and he has not exhausted these channels, then in general, the court will not grant leave to apply for judicial review.

39.In the present case, an appeal mechanism has been established for the registration of general and specialist contractors under the Ordinance.  It is indisputable that in relation to the Committee’s decision that the applicant failed in the interview and its advice for refusing Credit’s application, and the Building Authority’s decision to refuse Credit’s application, the applicant and Credit may appeal to the Court of First Instance pursuant to sections 9A and 13A of the Ordinance.  These two provisions have vested a broad power in the Court of First Instance which may confirm, reverse or vary the decision made by the Committee or the Building Authority.  They do not confine the jurisdiction of the Court of First Instance to only consideration of points of law in hearing appeals.  The Court of First Instance may therefore also consider the merits of the case on appeal.

40.The applicant has complained in the Form 86 that the registration system under the Ordinance is unlawful and unconstitutional, and that there is no effective and reasonable complaints mechanism under the Ordinance. They were all rejected by the trial judge.  The trial judge held, inter alia, that the objective of the registration system under the Ordinance, ie to ensure and supervise the quality of the construction contractors on the registers so that buildings and construction works would be consistent with public safety, was lawful.  The applicant did not appeal against this ruling of the trial judge, ie finding the objective of the registration system was lawful.  Moreover, he did not appeal against the trial judge’s finding that he and/or Credit might lodge an appeal by adopting the appeal mechanism provided for by section 9A and 13A of the Ordinance.  In such circumstances, the applicant has obviously not exhausted alternative means of seeking relief before making an application for leave to apply for judicial review.

41.The applicant submitted two written statements to this court after the appeal hearing had concluded. First, this court has to make this clear: when the court has reserved judgment and is preparing the judgment after the conclusion of a hearing, no party may make any further submissions to the court without leave.  This court, therefore, should not give any consideration to the contents of these two written statements made by the applicant.  Nevertheless, for the purpose of completeness in dealing with this appeal, it is necessary to point out that what is said in the applicant’s written statements that his application for judicial review would not be against the Building Authority’s refusal of Credit’s application, but instead against the composition of the Committee concerned under section 8(3A) and the allegations of the Building Authority’s failure to supervise and manage the work of the Committee are all incorrect.

42.The applicant has clearly stated in the Form 86 that the decision in respect of which relief is intended to be sought is: “Notified by the Building Authority on 4 September 2014 that pursuant to section 8B(2) of the Buildings Ordinance, Tsang Wai Tak (the applicant) is not permitted to be registered as an ‘authorized signatory’ of a registered ventilation contractor”.  In the column of relief sought, the request was stated: overturning the decision made by the two putative respondents, ordering them to “discharge their duties as a licencing institution and be obliged to accept the applicant as an ‘authorized signatory’ of a ‘registered specialist contractor (ventilation works)’” and restraining the putative respondents from “… stopping the applicant from having a lawful and reasonable opportunity to run a business freely in their related professions in Hong Kong”.  Furthermore, the first point under the grounds on which relief is sought has also specified that “the applicant’s company in making the three applications for registering the applicant as a specialist contractor (ventilation works) felt that [the two putative respondents] had failed to assess the interviews objectively and fairly before refusing the applicant as an authorized signatory of the above contractor.”

43.It can be seen from the foregoing that the judicial review that the applicant intends to apply for, and the crux of the relief he seeks, are against the decision made by the two putative respondents refusing Credit’s applications for registration as a ventilation contractor and of the applicant as its authorized signatory.  The applicant’s various complaints and allegations against the contractor registration system under the Ordinance, the composition of the Contractor Registration Committee, and the course of the interview conducted by the Committee in the application documents merely form part of the grounds in support of his request to overturn the two putative respondents’ decisions and order them to allow Credit’s application.  These complaints and allegations do not constitute any ground to deny the applicability of an appeal under sections 9A and 13A of the Ordinance, nor do they support the suggestion that the applicant must adopt an application for judicial review in seeking relief.

44.This court also notes that the applicant’s application documents have not explained why the applicant did not take the course of appeal as prescribed in the Ordinance but instead made the application for judicial review.  The applicant only mentioned in his submissions that the scope of appeal was too narrow, that he thought the provisions of the Ordinance were problematic and the decisions concerned were unlawful, by which the business environment of the industry and the public interest were affected and that his application was not or was not only against the refusal of Credit’s application and so on.  As analysed above, all these suggestions are not valid.

45.The applicant did mention in his submissions that the time for appeal had already expired and hence he applied for judicial review.  It is not disputed that back when Credit’s second application for registration was refused, the Buildings Department in reply to his complaints already said more than once that if Credit or he was not satisfied with the result of the application, they might appeal to the Court of First Instance: see the reply letters dated 14 March and 1 April 2014 by the Buildings Department.  The applicant also said at the appeal hearing that he at that time also knew that the time limit for appeal was 28 days.  He explained that he just hoped the complaints would make things better, whilst an appeal was time-consuming and costly.  However, after he had tried various channels of complaint and in vain, the time limit for lodging an appeal had already expired and the only option left was judicial review.

46.In our judgment, what the applicant has put forward does not constitute any exceptional circumstances which enables the court to grant him leave to apply for judicial review when he did not pursue a statutory appeal. This is because the applicant had knowingly chosen not to appeal within the time limit prescribed by law but made complaints to the Buildings Department and other institutions instead.  As to the applicant’s suggestion that appealing to the Court of First Instance would involve costs, in fact, costs would be involved whenever relief is sought through legal proceedings.  As the trial judge pointed out, an application for judicial review also involved costs.

47.We agree with Mr Chang’s submissions that the applicant has not exhausted alternative channels to seek relief before applying for judicial review.  This reason alone is sufficient for the appeal to be dismissed.

48.It is therefore not necessary for this court to go into the applicant’s grounds of appeal in depth.  We only need to point out that the trial judge in his judgment has already considered the grounds of the application and explained why those grounds are not reasonably arguable.  Mr Chang in his submission in reply has correctly pointed out why the applicant’s grounds of appeal cannot stand.  The applicant’s intended judicial review does not meet the standard for the grant of leave, the trial judge was correct in refusing the leave application.

49.As to the trial judge’s decision that the applicant be ordered to pay the costs of the two putative respondents, the Court of Final Appeal has reiterated in paras 13 and 17(1) to (7) in Leung Kwok Hung v. President of the Legislative Council (No. 2) (2014) 17 HKCFAR 841 that the court had a wide discretion as to costs as the particular circumstances of the case and justice warranted, and an application for judicial review being lodged in the public interest and the case involving a point of general public importance are factors in the consideration of costs.  In an application for leave to apply to the Court of First Instance for judicial review, the reasons for which the court required a putative respondent to provide information and attend the hearing, and whether the attendance of the putative respondent had been of material benefit to the court in deciding the leave application are also relevant factors for consideration.  The Court of Final Appeal also emphasised that since the Court of First Instance had a wide discretion as to costs, the Court of Appeal would only intervene in respect of the costs order in limited circumstances, for example, when there was failure in applying correct legal principles.

50.In respect of the present case, this court does not agree with the applicant that his application did not involve personal interests but was for the benefit of the industry, and involved the public interest.  As it has been said above, it was against the decision refusing Credit’s application for registration as a ventilation system contractor that the applicant made this application.  This court does not find any mistake in the trial judge’s costs order in the application of legal principles or any other reason for intervention.

51.In the light of the above reasons, the applicant’s appeal is dismissed.

52.Pursuant to the principle laid down by the Court of Final Appeal at para 17(8) and (9) in Leung Kwok Hung v. President of Legislative Council (No. 2), the applicant, being unsuccessful in this appeal, should bear the costs of the two putative respondents.  This court, therefore, makes an order nisi that the applicant do pay the costs of the 1^st and 2^nd putative respondents in this appeal, and this order nisi will become absolute after 14 days from the date of this order unless either party applies to this court for variation.

The applicant, Tsang Tak Wai, unrepresented, appeared in person

Jonathan T. Y. Chang, instructed by Department of Justice, for the 1^st and 2^nd putative respondents

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.