Wong Kwong Hung Henry v. Director-general of Civil Aviation

HCAL 341/2021

[2022] HKCFI 472

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 341 OF 2021

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BETWEEN

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JUDGMENT

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Introduction

1.This is the rolled-up hearing of the Applicant’s applications for leave to apply for judicial review and then an Order of Certiorari quashing the Putative Respondent’s (“the Director”) decision in his letter dated 15 December 2020 (“Decision” and “Decision Letter”) to suspend the Applicant’s Private Pilot’s Licence (Helicopters) No 12380 (“Licence”) pursuant to Art 62(1) of Air Navigation (Hong Kong) Order 1995, Cap 448C (“Order”) until the fulfillment of the requirements set out therein.

2.In gist, the Decision was made on the basis that the Civil Aviation Department (“CAD”) was not satisfied that the Applicant was a fit person to hold the Licence by reason of a deficiency in his knowledge and competence as demonstrated by his operation of a flight in a helicopter on 21 November 2019 (“Flight”) notwithstanding his awareness of the Four Defects referred to below and while the Certificate of Airworthiness (“CoA”) in respect of the helicopter had ceased to be in force. CAD took the view that the CoA in respect of the helicopter had ceased to be in force at the time of the Flight pursuant to Art 8(7)(b) of the Order.

3.It is self-evident that the safety risks to persons and property, whether inside an aircraft or along and near its flight path, caused by an aircraft failure owing to defects must be averted as far as practicable. In this respect, pre-flight checks ie inspection and maintenance, if any, by the pilot and his authorised agent, normally an aircraft maintenance manager, are regarded as a crucial safety measure in civil aviation. So much so that the proper completion of pre-flight checks by the pilot is mandated by the Order.

4.In the view of CAD, the Applicant’s failure to appreciate the CoA had ceased to be in force while conducting the Flight demonstrates a deficiency in his knowledge and competence. A fortiori, if the Applicant did appreciate the CoA had ceased to be in force.

Background

5.The basic facts pertaining to this judicial review are not complicated.

6.The Applicant was the registered owner of a Robinson R44 Raven helicopter with registration mark B-KHW (“Helicopter”) and the holder of the Licence.

7.The Helicopter was first issued with a CoA by CAD on 3 December 2014. The CoA had been renewed annually in accordance with the Hong Kong Aviation Requirements published by CAD. The CoA at the time of the Flight was issued on 30 November 2018 and was valid until 2 December 2019. The Helicopter had been maintained by the Hong Kong Aviation Club Limited (“HKAC”) since it was first registered until the Applicant’s membership was terminated by HKAC in January 2020.

8.In the morning of 17 November 2019, an Airworthiness Flight Test (“Test”) was carried out on the Helicopter for the purpose of the impending renewal of its CoA. The Test was conducted by a test pilot Mr Ronald Maurer (“Maurer”) and an observer Mr Giles Haybittle (“Haybittle”).

9.As recorded in the Airworthiness Flight Test Certificate (“AFTC”) dated 17 November 2019 signed by Maurer, four items of defects in the Aircraft (“Four Defects”) were observed in the Test viz:

(1) “Travel of the tail rotor push/pull tubes don’t move as freely as they should”.

(2) “carb heat gauge underreads”.

(3) “manipulating carb heat level in flight is moving collective”.

(4) “strobe light not working after the flight”.

10.In the AFTC,

(1) at the box “Performance”, Maurer circled the word “SATIS”;

(2) at the box “Conclusions/Comments”, Maurer remarked “Air Test Satisfactory, subject above 4 defects to be rectified.”

11.On the same day, after the Test had been conducted, Haybittle issued an email (“17 Nov Email”) to Mr Wong Tak Wing (“Dandy Wong”), an Aircraft Maintenance Manager of the HKAC and the ground engineer of the Aircraft. That email was copied to Maurer. In the said email, Haybittle drew Dandy Wong’s attention to the 4 issues identified in the Test viz the strobe light, the tail rotor, the collective and the Carb-Heat gauge in the following terms:

“•   The strobe light appears to be inoperative – both circuit breaker and switch were cycled a few times

•   The travel of the tail rotor push pull tubes appears to be binding and does not move as freely as it should

•   When flying in a low to normal cruising speed with the collective raised a few inches the carb heat lever is moving the collective at any time the carb heat lever is manipulated up or down. This can also be simulated on the ground with the engine off. This is both dangerous in flight with uncommanded altitude changes and also on the ground as there is a risk of auto-launch when the pilot is not ready.

•   The Carb-Heat gauge is reading incorrectly – I understand this was also noted a year ago. Please advise if there is an issue correcting this issue.”

12.Maurer then forwarded the 17 Nov Email to the Applicant stating: “Please note that the aircraft is grounded until these things are fixed.”

13.In reply to Maurer, the Applicant said in his email: “Thank you very much.”

14.On or around 20 November 2019, the Applicant claims he called Dandy Wong and inquired about the nature and severity of the Four Defects. The Applicant claims Dandy Wong had told him that they were minor and immaterial and would not raise any safety concerns. He also claims Danny Wong told him he did not order the Helicopter to be grounded.

15.Danny Wong confirms he did receive such a phone call from the Applicant[1] who inquired about the Four Defects set out in the 17 Nov Email. At that time, Danny Wong had not yet physically inspected the Helicopter. He denies telling the Applicant that the Four Defects were minor and immaterial. He also denies mentioning whether or not the Helicopter was grounded.

16.The Flight took place in the morning of 21 November 2019 when the Applicant flew the Aircraft privately ie not for hire or reward for about an hour. The Applicant claims that, before the Flight, he had duly performed pre-flight checks set out in the operations manual of the Aircraft provided by Robinson and was satisfied that the Aircraft was fit for it.

17.On 21 November 2019, at around 12:20pm, Dandy Wong sent an email and attached a copy of the AFTC to an officer of CAD, copied to the Applicant.

18.On 27 and 28 November 2019, Dandy Wong conducted the maintenance check of the Helicopter and rectified the defects identified in the AFTC. On 29 November 2019, a certificate of release to service was issued.

19.In late December 2019, CAD received complaints concerning inter alia the Flight at the time when the Helicopter had the Four Defects before their rectification.

20.By letter dated 21 January 2020 (“21 Jan Letter”), CAD provisionally suspended the Applicant’s Licence pending an investigation into the Flight, taking the view that the CoA had ceased to be in force from 17 November 2020 under Art 8(7)(b) of the Order.[2] This was the sole basis of the provisional suspension of the Applicant’s Licence and the focus of CAD’s investigation. The relevant parts of the 21 Jan Letter read:

“According to the information obtained by the CAD, it seems that: …

•   An Airworthiness Flight Test was carried out for the renewal of B-KHW’s Certificate of Airworthiness (CoA) on 17 November 2019. There were four defects shown on the Airworthiness Flight Test Certificate form. The four defects were rectified on 27 and 28 November and the annual maintenance check was completed on 29 November 2019. Therefore the CoA of B-KHW had ceased to be in force in accordance with Article 8(7)(b) of Cap. 448C from 17 November 2019 to 29 November 2019 …” (emphasis added)

21.By letter dated 24 January 2020, the Director requested the Applicant to provide the name of the pilot conducting the Flight. In the course of the investigation, in particular, in the correspondence between the Applicant’s solicitors Lily Fenn & Partners and CAD, the Applicant at first refused to admit he was the pilot of the Flight. CAD held an Inquiry on 23 April 2020 (“Inquiry”) at which the Applicant still did not confirm or deny whether he was the pilot in question. The Applicant even declined to make any representation at the Inquiry. It was only on or around 7 May 2020 that the Applicant’s solicitors sent their written representations to CAD (“Representations”). One of the points made in the Representations was that the Four Defects were relatively minor in nature and claimed that Danny Wong, as the qualified aircraft ground engineer, had not considered the Helicopter not airworthy at all.

22.Finally, on 7 October 2020, the Applicant admitted he had conducted the Flight.

23.On 15 December 2020, the Director made the Decision the subject of this judicial review.

24.On 12 March 2021, the Applicant filed his original Form 86. Subsequently, leave was granted to the Applicant, with no objection by the Director, to amend his Form 86 save for paragraph 106A.

Deliberation

25.In his skeleton submissions at paragraph 6, the Applicant contends that the Decision is flawed and susceptible to judicial review for the following reasons:

(1) Procedural unfairness and failure to conduct “due inquiry” as required by Art 62(1) of the Order, rendering the Decision illegal (Grounds 1(a) & 1(b) in the amended Form 86).

(2) The Director took into account irrelevant considerations, such as the Defendant’s manner of conducting his defence during the inquiry (Ground 2 in the amended Form 86).

(3) The Director took into account further irrelevant considerations ie the prejudicial and unverified comments attacking the Applicant’s character made by the HKAC, which had not been disclosed to the Applicant before the Decision.[3]

(4) The Director’s approach towards Art 32 of the Order was erroneous - he erred in law by failing to ask whether the Applicant has indeed discharged his pre-flight obligation (Ground 3(a) in the amended Form 86).

(5) The Director did not mention Art 8(7)(b) of the Order in the Decision and failed to provide any or any adequate reasons for alleging that the Applicant had failed to comply with Art 8(7)(b) and/or Art 32 (Ground 3(b) in the amended Form 86).

(6) The Director’s interpretation of Art 8(7)(b) of the Order is erroneous (Ground 4 in the amended Form 86).

(7) The penalty of suspending the Applicant’s Licence subject to the prescribed test requirements is disproportionate (Ground 5 in the amended Form 86).

26.As a general response, Mr Lui, for the Director, submits that:

(1) The sole basis of the Decision was that the Applicant conducted the Flight with knowledge of the Four Defects while the CoA had ceased to be in force pursuant to Art 8(7)(b). He was thus in breach of Art 7(1)(a) of the Order for flying the Helicopter in such circumstances.

(2) Due inquiry was held to give the Applicant a full opportunity to respond to the Director’s case about the Flight.

(3) The Applicant does not challenge the correctness of the test pilot’s finding of the Four Defects as such.

(4) There is no suggestion that the Decision was Wednesbury unreasonable[4] in the sense that it is a decision so unreasonable that no reasonable authority could ever have come to it; in the absence of such a Wednesbury challenge, the Court does not review the merits of the Decision.

(5) The Director has produced a full set of the contemporaneous internal memos showing the considerations taken or not taken into account in reaching the Decision as well as the reasons for it.

(6) The Court should be cautious and slow to interfere with the orders of corrective action imposed by the Director who is best placed to judge on the strength of his expertise and experience in civil aviation regulation: Lau Koon Leung v Medical Council of Hong Kong [2006] 3 HKLRD 225 at [69]-[70]. Unless the corrective actions are so out of proportion as to be perverse, the Court ought not intervene: Chu Ping Tak v Commissioner of Police [2002] 3 HKLRD 679 at [50].

Ground 4 - applicability of Art 8(7)(b)

27.Since the sole basis of the Decision is said to be Art 8(7)(b), this court will examine Ground 4 first. In this regard, the starting point is paragraphs 102 to 107 of Form 86 which simply provide that:

“Ground 4 – Error of law in relation to Article 8(7)(b)

102. In the 10 March Letter, the Director now claims that his case against the Applicant had never changed in that it has always been about the invalidity of the CoA. For reasons stated under Ground 1(a) hereinabove, the Applicant contends that the Director’s argument is unsustainable.

103. In the event that the Director’s assertion is accepted, the Applicant submits that the Director still erred in finding the CoA had ceased to be in force under Article 8(7)(b).

104. Article 8(7)(b) provides that:

‘A certificate of airworthiness or a certificate of validation issued in respect of an aircraft shall cease to be in force:

(b) until the completion of:

(i) the inspection of the aircraft … referred to in subparagraph (a) of this paragraph made for the purpose of ascertaining whether the aircraft remains airworthy; or…’

105. In other words, in order to fall under Article 8(7)(b), the subject aircraft must first fall within the scope of Article 8(7)(a), which provides that:

‘(a) if the aircraft…is overhauled, repaired or modified, or if any part of the aircraft or of such equipment is removed or is replaced, otherwise than in a manner and with material of a type approved by the Chief Executive either generally or in relation to a class of aircraft or to the particular aircraft…’

106. Here, the Aircraft had not been ‘overhauled, repaired or modified’ at the material time. Not [sic] was any of its parts removed or replaced. Hence, the Aircraft was not in the condition specified under Article 8(7)(a) prior to the impugned flight. It necessarily follows that Article 8(7)(b) does not apply to the Aircraft at the material time.

106A. In HCM-1[5], the Director asserted at §134 that the phrase ‘referred to in sub-paragraph (a) of this paragraph’ only qualifies the term ‘equipment’ but not ‘aircraft’ but even if the construction is correct, he has not shown in what precise manner was Article 8(7)(b) engaged or not complied with. Insofar as may be necessary the Applicant says there was in fact no non-compliance even if applicable. See §§42-44 of the Applicant’s 2nd Affidavit and the 1st Affidavit of Sears Robert Dudley.

107. Accordingly, even if the Court accepts that the validity of the CoA was the only allegation made against the Applicant and was the very basis that the Director decided to suspend the Applicant’s PPLH, the Director’s finding that the CoA was invalid under Article 8(7)(b) was still erroneous.” (emphasis added)

28.The only basis of Ground 4 in the original Form 86 was that Art 8(7)(a) must first be engaged before Art 8(7)(b) became applicable. That argument has been substantially expanded by the introduction of paragraph 106A which is the subject of the Applicant’s application to amend. The introduction of paragraph 106A is opposed by the Director. Unlike the original Ground 4 which is concerned with a pure question of law ie the interpretation of Arts 8(7)(a) and (b), the amendment raises issues of fact and, worse still, simply asks the Director to read the 2 affidavits in question to decipher for himself what argument the Applicant really seeks to run by adding paragraph 106A.

29.Pursuant to this court’s direction on Day 2 of the hearing, both parties have filed further submissions on whether the amendment should be allowed. This court has considered the submissions carefully and is of the view that the Director’s opposition is well-founded and that the amendment should be disallowed.

30.In Mr Lui’s 2nd supplemental skeleton submissions, he stresses that the lateness of the amendment and the prejudice unavoidably occasioned to the Director.

31.As far as lateness is concerned, this is self-evident. The original Form 86 was filed on 12 March 2021. The Affirmation of Hung Chung Man (“Hung 1”) for the Director in opposition was filed on 16 June 2021. Paragraph 106A is allegedly in response to paragraph 134 of Hung 1, as suggested by its 1st sentence. The Applicant then filed the 1st Affidavit of Hui Kin Long[6] (“Hui 1”) exhibiting the Applicant’s 2nd Affidavit (“Applicant 2”) and the 1st Affidavit of Sears Robert Dudley[7] (“Sears 1”) on 26 July 2021 in reply after an unless Order of this court dated 21 July 2021.

32.The summons for leave to amend was filed on 4 August 2021, only 3 working days before the hearing. Even if one counts from 30 July 2021 when the draft amended Form 86 was sent to the DOJ, it was still only 6 working days before the hearing. On any view of the matter, this can only be regarded as inordinate delay: cf Wise Union Industries Limited v Hong Kong Science and Technology Parks Corporation unrep, HCAL 12/2009 and 13/2009, 21 September 2009, A Cheung J (as he then was) at [4].

33.Worse still, the reason for the delay has not been explained on oath. In the 3rd Affidavit of Hui Kin Long (“Hui 3”) filed on 4 August 2021 in support of the summons for leave, there was no explanation for the delay at all. Mr Hui only said in paragraph 5 that it would be prudent for the Applicant to apply for leave to make ex abundanti cautela technical revisions to the Form 86. That is hardly an explanation for the delay.

34.As far as prejudice is concerned, Mr Lui submits and this court agrees that paragraph 106A is essentially an attempt to introduce wholly new arguments in relation to the compliance or otherwise of Art 8(7)(b). Paragraphs 42 to 44 of Applicant 2 raise issues as to the meaning of certain items in the AFTC filled in by Maurer after the Test. Paragraphs 29 to 36 of Sears 1 essentially contain Mr Sears’ expert opinion that the Four Defects did not affect the airworthiness of the Helicopter. They raise both factual and technical issues and would call for responsive factual and technical evidence from the Director.

35.Further, those new arguments could not fairly be said to be a response to paragraph 134 of Hung 1. Paragraph 134 of Hung 1 simply reads:

“Paragraphs 104 to 106 of the Form 86

134. The Applicant’s interpretation of Article 8(7)(b) as set out in paragraphs 104 to 106 of the Form 86 is wrong. The phrase ‘referred to in sub-paragraph (a) of this paragraph’ only qualifies the term ‘equipment’ but not ‘aircraft’. In fact, Article 8(7)(a) and Article 8(7)(b) refer to two distinct and separate conditions that would render the CoA ceasing to be in force.” (emphasis added)

36.In other words, Mr Hung is simply suggesting that, as a matter of statutory interpretation, Art 8(7)(a) and Art 8(7)(b) should be read disjunctively. This is a point raised by Mr Lui and will be dealt with later in this Judgment.

37.In support of his opposition, Mr Lui prays in aid the very cogent observation made by Litton PJ in Lau Kong Yung & Others v Director of Immigration [1999] 3 HKLRD 778 at 816B as follows:

“ … No system of administrative law can operate in the amorphous way seen in this case. Grounds for quashing the exercise of administrative power by the court if well-founded should be capable of being stated clearly and succinctly, in a few numbered paragraphs. I would emphasize the word few. Once leave to apply for judicial review is granted, amendment of the grounds should rarely occur. All too often applications are made for amendment after leave to issue proceedings has been granted, as if Order 53 r.3 were simply the portals to a playground of infinite possibilities where the administrators could then be made to leap through more and more hoops of fire. It is up to the judges of the High Court to stop this kind of extravaganza.” (emphasis added)

38.Lastly, Mr Lui submits and this court agrees that any late application to amend a Form 86 has a high threshold to pass in the post-CJR era: Wise Union Industries Limited v Hong Kong Science and Technology Parks Corporation at [2] and [11]. On the materials available, this court is not satisfied that the Applicant has reached the high threshold required for this court to exercise its discretion in his favour.

39.At paragraph 7 of the Applicant’s skeleton submissions on the amendment, the Applicant explains the points that he is seeking to make by introducing paragraph 106A.

(1) First, even assuming (contrary to the Applicant’s case) that the Director’s construction of Art 8(7)(a) and Art 8(7)(b) were correct, the Director still fails to show how Art 8(7)(b) was engaged to result in an automatic cessation of the CoA.

(2) Second, even assuming in favour of the Director that Art 8(7)(b) was triggered (which is denied), the Director erred in concluding that the Applicant had failed to complete the pre-flight check because in this case the Applicant could and had indeed completed the pre-flight check notwithstanding the Four Defects stated in the AFTC: paragraphs 39-41 of Applicant 2 and paragraphs 29-36 of Sears 1.

40.In this court’s view, paragraph 7 of the Applicant’s skeleton submissions on the amendment precisely reinforces, rather than undermines, Mr Lui’s complaint that this is an attempt to introduce wholly new arguments in relation to the applicability of Art 8(7)(b).

41.Having considered the aforesaid and the other points raised in the Applicant’s skeleton submissions on the amendment, this court does not consider that the Applicant has any real answer to the Director’s complaints of unexplained inordinate delay or prejudice occasioned by the proposed amendment. For these reasons, the application to amend the Form 86 by the introduction of paragraph 106A is dismissed.

42.At this juncture, it is convenient to deal with the Director’s application by summons dated 30 July 2021 to strike out paragraphs 29-36 of Sears 1 on the ground of inter alia irrelevance.

43.In PCCW-HKT Telephone Limited & Anor v The Secretary for Commerce and Economic Development unrep, HCAL 51 of 2013, Ng J, 14 July 2014, this court was faced with an application for leave to adduce expert evidence by the Applicants on the topic of public finance and trading funds. Eventually, this court allowed the application as the evidence was relevant in (1) providing relevant background information on eg the operation and rationale of different types of trading funds against which to better understand the OFTA/OFCA Trading Fund; (2) explaining technical expressions used in the Trading Funds Ordinance, Cap 430.

44.At [54], this court referred to R (on the application of Lynch) v General Dental Council [2004] 1 All ER 1159 in which the applicant applied for judicial review against a decision of the appeal panel which refused him entry on the specialist list for orthodontists maintained by the respondent. The applicant then applied to adduce fresh expert evidence to show that he had had such expertise. In his Judgment, Collins J (as he then was) made certain important observations on the limits of the court in receiving fresh expert evidence in judicial review proceedings as follows:

“ [22] I have no doubt that fresh evidence involving expert evidence should in general not be admitted unless it falls within the Ex p Powis guidelines. However, it is and has always been recognized that irrationality is an error of law which can lead to a decision being quashed. If the decision in question is made by an expert tribunal or indeed by anyone dealing in a field involving consideration of matters which would not obviously be fully understood by a layman without some assistance from an expert in that field, it may be necessary at the very least to have some explanation of any technical terms. Mr Garnham accepted that expert evidence could be adduced to provide such explanations. Without it, the court might well be unable to consider properly any irrationality argument. When I used the word ‘irrationality’ I am intending to include not only perversity but also a failure to have regard to a material matter or a taking into account of an immaterial matter.

[23] Mr Havers submitted that, particularly in a case such as this, it was necessary that the court should understand not only the meaning of the technical terms but also their significance. The nature of the treatments which the claimant had carried out could no doubt be explained, but the court would be unable to judge whether the decision was irrational without appreciating their significance. …

[25] This is, I appreciate, some extension beyond that recognized by Ex p Powis of the possibility of admitting fresh evidence. But its purpose is in reality to explain to the court matters which it needs to understand in order to reach a just conclusion. It is difficult to see why, where such need is established, that should not in principle be permitted. …” (emphasis added)

45.It should be noted that in R (on the application of Lynch) v General Dental Council, one ground of review was irrationality. In PCCW-HKT Telephone Limited & Others v The Secretary for Commerce and Economic Development, one ground of review was the unreasonableness of the impugned decision.

46.In Sunevision Holdings Ltd v Hong Kong Science and Technology Parks Corp [2019] HKCFI 1752 at [16], Godfrey Lam J (as he then was) also made an observation on the need to be vigilant in monitoring attempts to introduce expert evidence in applications for judicial review:

“16. Monitoring attempts to introduce expert evidence is not just a power of the court but its duty in exercising its case management functions. It is particularly important in applications for judicial review for the court to be vigilant. Expert evidence is unusual in judicial review proceedings which are concerned with public law wrongs, not private law rights. The court’s supervisory jurisdiction is directed at the legality and rationality of a decision and the process, not its substantive merits. … The nature and limits of judicial review must be borne in mind in assessing whether expert evidence would be relevant, of probative value and needed for the proper resolution of the case.”

47.As this court observed earlier, paragraphs 29 to 36 of Sears 1 essentially contain Mr Sears’ expert opinion that the Four Defects did not affect the airworthiness of the Helicopter. But how is that relevant to any of the 5 Grounds of review pleaded in the amended Form 86? As Mr Lui is at pains to emphasise to this court time and again, there are no merits challenge in the sense that the Decision was Wednesbury unreasonable, irrational or perverse. Nor does the Applicant challenge the correctness of the test pilot’s finding of the Four Defects as such. The closest that they can be argued by the Applicant to be purportedly relevant is in relation to paragraph 106A under Ground 4. Indeed, judging from the Applicant’s skeleton submissions in response to the Director’s striking out summons at paragraph 18, it appears that the Applicant is attempting to tie in paragraphs 29 to 36 of Sears 1 with paragraph 106A. But leave to introduce paragraph 106A has been refused. There is just no room for the Applicant to argue those paragraphs in Sears 1 are relevant, of probative value and needed for the proper resolution of this case.

48.Since this court has ruled those paragraphs in Sears 1 are irrelevant and hence inadmissible for the purpose of these proceedings, this court shall formally strike them out as per the Director’s summons.

49.Now, back to the original Ground 4 which is concerned with the Director’s alleged error of law in relation to the applicability of Art 8(7)(b) of the Order.

50.In order to understand the Applicant’s contention, one must set out Arts 8(7)(a) to (d) in full:

“8. Issue, renewal, etc., of certificates of airworthiness

(7) A certificate of airworthiness or a certificate of validation issued in respect of an aircraft shall cease to be in force:

(a) if the aircraft, or such of its equipment as is necessary for the airworthiness of the aircraft, is overhauled, repaired or modified, or if any part of the aircraft or of such equipment is removed or is replaced, otherwise than in a manner and with material of a type approved by the Chief Executive either generally or in relation to a class of aircraft or to the particular aircraft;

(b) until the completion of:

(i) the inspection of the aircraft or of the equipment referred to in subparagraph (a) of this paragraph made for the purpose of ascertaining whether the aircraft remains airworthy; or

(ii) the maintenance of the aircraft or of the equipment referred to in subparagraph (a) of this paragraph,

being an inspection or maintenance:

(iii) classified as mandatory by the Chief Executive; or

(iv) required by a maintenance schedule approved by the Chief Executive in relation to the aircraft;

(c) until the completion to the satisfaction of the Chief Executive of any modification of the aircraft or of the equipment referred to in subparagraph (a) of this paragraph, being a modification required by the Chief Executive for the purpose of ensuring that the aircraft remains airworthy; or

(d) if the aircraft has sustained damage of a nature such that, in the opinion of the Chief Executive, the aircraft is no longer airworthy.”

51.In short, in order to invoke Art 8(7)(b), the Applicant contends that the conditions under Art 8(7)(a) must be engaged. Since the Helicopter had not been “overhauled, repaired or modified” at the material time, nor was any of its part removed or replaced, the Helicopter was not in the condition specified under Art 8(7)(a) prior to the Flight and hence Art 8(7)(b) was not engaged.

52.In Hung 1, Mr Hung explains, from paragraphs 38 onwards, in some detail the regulatory regime concerning the requirements for a CoA and its automatic cessation under Art 8(7)(b), a brief summary of which is set out as follows.

(1) According to Art 7(1)(a), an aircraft, including a helicopter, shall not fly unless there is in force in respect of the aircraft a CoA duly issued or rendered valid under the law of the country in which the aircraft is registered. This means before an aircraft registered in Hong Kong may fly, the pilot must ensure, inter alia, that the CoA issued or rendered valid by CAD pursuant to the Order is in force.

(2) Art 8(7)(b) sets out the requirements for the continuing airworthiness of an aircraft in that it specifies the circumstances in which a CoA may cease to be in force until the completion of the relevant inspection or maintenance. For the present purpose, the relevant inspection or maintenance is set out in Arts 8(7)(b)(i), (ii) and (iv):

(i) inspection of the aircraft or of the equipment as is necessary for the airworthiness of the aircraft made for the purpose of ascertaining whether the aircraft remains airworthy; or

(ii) maintenance of the aircraft or of the equipment as is necessary for the airworthiness of the aircraft;

being an inspection or maintenance:

(iv) required by a maintenance schedule approved by the Chief Executive[8] in relation to the aircraft.

(3) The word “maintenance” was defined in the Airworthiness Notice, No. 1A, which was issued to supplement the definitions of airworthiness-related terms that are not included in the Order and Hong Kong Aviation Requirements. At the material time, “maintenance” was defined as “the performance of tasks required to ensure the continuing airworthiness of an aircraft, including any one or combination of overhaul, inspection, replacement, defect rectification, and the embodiment of a modification or repair.”

(4) In civil aviation terminology, the concept of maintenance includes inspection. As such the Pilots Pre Flight Check referred to below are considered as both an inspection under Art 8(7)(b)(i) and maintenance under Art 8(7)(b)(ii).

53.In short, the CAD’s position is that when an aircraft is due for an inspection or maintenance as required by an approved maintenance schedule, the CoA shall automatically cease to be in force until the said inspection or maintenance is completed. There is no requirement for Art 8(7)(a) to be engaged at all. According to the Maintenance Schedule in relation to the Helicopter approved by the CAD (“Approved Maintenance Schedule”) at paragraphs 3.5 and 3.12, such inspection includes inter alia “Pilots Pre Flight Check” prior to the first flight of the day.

54.Mr Lui submits and this court accepts that it should reject the Applicant’s contention that Art 8(7)(a) must be engaged before Art 8(7)(b) is triggered.

55.This is because the contention fails to appreciate that Art 8(7)(a) is designed to address “unapproved” overhauling, repairing or modification of an aircraft. Hence, the “aircraft” referred to in Art 8(7)(a) is one that “is overhauled, repaired or modified … otherwise than in a manner and with material of a type approved by the Chief Executive”. Importantly, the inspection or maintenance referred to in Art 8(7)(b) is not expressed to be tied in with the “overhauling, repairing or modification” of the aircraft as such. Rather, the said inspection or maintenance is one required by an approved maintenance schedule, which is not limited to the case where an aircraft has been “overhauled, repaired or modified”.

56.Further, Mr Lui submits that, as a matter of statutory interpretation, Arts 8(7)(a) to (d) should be read disjunctively so that a CoA shall cease to be in force as long as any one of the conditions set out in Art 8(7) (a) to (d) is triggered - in the present case Art 8(7)(b). In this court’s view, this is the natural reading of Arts 8(7) (a) to (d) where (i) the word “and” is absent between (a) and (b), which renders untenable the Applicant’s contention that (a) and (b) should be linked up and operate together, while (ii) the word “or” appears only between (c) and (d).

57.Interpretation of a statute is of course a matter for this court, not for Mr Hung or any other witness. However, in light of the explanation given in Hung 1 and Mr Lui’s submission aforesaid, this court is of the view that, as a matter of statutory interpretation, Arts 8(7)(a) to (d) should be read disjunctively. In other words, the Applicant’s argument that Art 8(7)(a) must first be engaged before Art 8(7)(b) became applicable is rejected.

58.That is sufficient to dispose of Ground 4.

Grounds 1(a) & (b), 2 and 3(a)

59.Regarding Grounds 1(a) and (b), the Applicant contends that:

(1) The Decision was procedurally unfair in that the Director had failed to disclose to the Applicant the case he had to answer ie the alleged contravention of Arts 15, 22 and 32 of the Order (“New Allegations”) before suspending his Licence on those bases.

(2) For the same reasons as set out above, the Director had failed to conduct a “due inquiry”, as required by Art 62(1) of the Order, before suspending the Applicant’s Licence.

60.At paragraph 52 of the amended Form 86, the Applicant sets out his complaint in these terms:

“52. It is contended that the Director fell into the very elementary error described in the authorities by failing to disclose to the Applicant the New Allegations against him before finding him guilty on those bases:

(1) Since the CAD issued its first letter suspending the Applicant’s PPLH provisionally, the one and only allegation made known to the Applicant was that he had flown the Aircraft when the CoA had ceased to be in force pursuant to Article 8(7)(b) of Cap 448C.

(2) At no point before and during the Inquiry had the Director informed the Applicant expressly and/or illustrated in any other ways that there had been a change of case. Indeed, throughout the entire process, the Director had never mentioned any other provisions in Cap 448C to the Applicant.

(3) Even after the Inquiry was conducted, the Applicant remained in the dark as to the existence of and/or the possibility of facing New Allegations. There was no indication whatsoever from the Director that he was considering new charges against the Applicant.

(4) As can be seen in the Submissions made by LFP on behalf of the Applicant in May 2020, which was submitted after the Inquiry, the Applicant’s defence was tailored to answer the Allegation that the CoA had no effect at the material time. The Submissions showed that the Applicant had not anticipated that there was any other basis to suspend his PPLH.

(5) It was only in the Decision which officially suspended the Applicant’s PPLH did the Director mention, for the first time, that he considered that the Applicant had violated Articles 15, 22 and 32 of Cap 448C. …” (emphasis added).

61.The applicable principles in relation to Ground 1 are trite:

(1) The right to be heard must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him. And then he must be given a fair opportunity to correct or contradict them: Kanda v Government of the Federation of Malaya [1962] AC 322 at 337 per Lord Denning.

(2) The details of disclosure required to meet the standard of fairness is to enable the Applicant to make “meaningful and focused representations” to the adverse materials and allegations contained therein: Asia Television Ltd v Communications Authority (No 2) [2013] 3 HKLRD 618 at [54] and [61] per Kwan JA.

(3) The statutory requirement of “due inquiry” has been equated with the duty to act fairly. This means the accused should be given a full and fair opportunity of being heard: Supperstone, Goudie & Walker Judicial Review (6th ed) para 10.59.

62.Regarding Ground 2, the Applicant contends that the Director had taken into account irrelevant considerations ie the Defendant’s manner of conducting his defence during the Inquiry. The Director had also taken into account further irrelevant considerations ie the prejudicial and unverified comments attacking the Applicant’s character made by the HKAC (“Irrelevant Considerations”).

63.At paragraphs 75 and 79A of the amended Form 86, the Applicant sets out his complaint in these terms:

“75. As alluded to previously, out of the 6 paragraphs of reasons provided by the Director, 4 paragraphs were dedicated to express disapproval of the manner in which the Applicant conducted the proceedings. The Director pinpointed that:

(1) First, the Applicant had requested for adverse materials relied on by the Director e.g. the radar record and the Flight Authorisation (see §§3 & 4 of the Decision);

(2) Second, the Applicant refused to volunteer the name of the pilot in command of the impugned flight, which caused the Director to expend considerable resources over the months to investigate the alleged flight (see §§3, 4 & 6 of the Decision); and

(3) Third, the Applicant allegedly failed to make submissions at the Inquiry (see §4 of the Decision).

…

79A. It also transpires from the Affirmation of Hung Chung Man … that the Director had unfairly taken into account irrelevant and/or prejudicial and unverified comments made by the Hong Kong Aviation Club about unestablished past allegations against the Applicant (§§47-57 of the Applicant’s 2^nd Affidavit dated 26 July 2021). …”

64.As far as Ground 2 is concerned, it is trite and not in dispute that if the Director has taken into account irrelevant considerations, the Decision may be set aside.

65.Regarding Ground 3(a), the Applicant contends that the Director’s approach towards Art 32 was erroneous by failing to ask whether the Applicant has indeed discharged his pre-flight obligations.

66.As stated earlier, the alleged New Allegations are said to be that the Applicant had violated Arts 15 and 22 of the Order for failing to record the Flight in his flight log books as well as Art 32 of the Order for failing to fulfil his pre-flight responsibility as a pilot.

67.In this regard, the Applicant picked on 2 paragraphs ie paragraphs 5 and 7 in the Decision and set them out in paragraphs 32 to 33 of the amended Form 86 as follows:

“32. The Director then, for the first time ever, alleged that the Applicant had contravened Articles 15 and 22 of Cap 448C for failing to record the impugned flight on his flight log books, which were only shown to the CAD for the first time at the Inquiry:

‘5. At our request, you brought along your aircraft log book for aircraft registration mark B-KHW, your personal flying log book, and the Flight Authorization Log to attend the inquiry in April 2020. These documents were photocopied with your permissions and in the presence of LFP. In accordance with Article 15 and Article 22 of Cap 448C, it is a requirement that particulars of each flight should be recorded in the aircraft log book and personal flying log book respectively. Whereas the same should be recorded in the Flight Authorization Log which is a document for members of the Hong Kong Aviation Club (HKAC). We noted at the time that none of these documents contained a record of the alleged flight operated by you in the aircraft on 21 November 2019.’

33. The Director then proceeded to allege, again for the first time, that the Applicant had failed to fulfil his pre-flight responsibility as a pilot under Article 32:

‘7. The CAD considered your alleged breach of the law a serious matter. Indeed, defective component or equipment could impair the airworthiness of the aircraft and thus endanger the safety of the aircraft and passengers as well as other persons and properties. Following the safety concern raised from the test pilot and his comment that the aircraft should be grounded until the defects were rectified, it is reasonable to expect that a pilot would not fly the aircraft concerned. In this regard, the CAD is not convinced that you have fulfilled your pre-flight responsibility as the pilot in command of the concerned flight on 21 November 2019 under Article 32 of Cap 448C. In addition, as you admitted in your letter dated 7 October 2020 that you operated the aircraft with registration B-KHW on 21 November 2019, it is also noted that the particulars of this flight were not recorded in accordance with the requirements stipulated in Article 22(2) of Cap 448C.’

…”

68.For the Director, Mr Lui’s response to Ground 1, as well as Grounds 2 and 3(a), is this. This court should first decide whether Art 8(7)(b) of the Order was the sole basis of the Decision (“Primary Issue”). If the answer to this question is yes, then Grounds 1 to 3(a) must fail:

(1) Ground 1(a) fails because no New Allegations were made against the Applicant. Ground 1(b) which adds nothing to Ground 1(a) necessarily fails.

(2) Ground 2 fails because the Applicant’s obstructive manner during the course of CAD’s investigation into the Flight and the adverse comments by HKAC on the Applicant’s questionable character did not form the basis of the Decision.

(3) Ground 3(a) also fails because contravention of Art 32 was not a basis of the Decision.

69.This court agrees with Mr Lui and will proceed to determine the Primary Issue first.

70.The Primary Issue raises a pure question of evidence. As can be seen from the above, the Applicant’s contention that, in reaching the Decision, the Director had made the New Allegations against him and had taken into account the Irrelevant Considerations is simply based on what is stated in the Decision Letter itself. In this court’s view, that is too narrow an approach. The Decision was not made by the Director in a vacuum. As the evidence shows, it was made after numerous correspondence with the Applicant starting with the 21 Jan Letter, the Inquiry itself, the Representations made by the Applicant’s solicitors and internal discussions within the CAD. Hence, a determination of the Primary Issue should and must require a holistic assessment of all the available evidence before this court.

71.First, in Hung 1 from paragraph 82 onwards, Mr Hung sets out in detail CAD’s investigation concerning the Flight, including what happened at the Inquiry held on 23 April 2020 as well as the correspondence between the Applicant/his solicitors and CAD both before and after the Inquiry. At paragraph 95, Mr Hung sums up CAD’s findings as follows:

“95. Upon the Applicant’s admission that he conducted the Flight, CAD found that the Applicant operated the Flight without a valid CoA which was required by Article 7(1)(a) of AN(HK)O[9]:

(a) As explained in Section C above, prior to the first flight on 21 November 2019, the Applicant must perform pre-flight actions required by Article 32 of AN(HK)O, including but not limited to the Pre-Flight Checks in accordance with the Operating Handbook.

(b) One of the first steps of the Pre-Flight Checks under Section 4 of the Operating Handbook is to ‘[c]heck maintenance records to verify aircraft is airworthy’ … The Aircraft Log Book of the Helicopter is one of the relevant maintenance records, and as explained in paragraph 79 above, it was the Applicant’s responsibility to record the Four Defects in the Aircraft Log Book.

(c) Further, the Operating Handbook requires the Applicant to follow the checklist therein. In respect of the Four Defects, the Applicant should have engaged a qualified AML Holder to inspect the Helicopter and to complete any consequential maintenance, including to ensure that the tail rotor control can move free of interference …, the carb (i.e. carburetor) heat indicator work properly …, the carb heat lever movement does not interfere the collective, and the strobe light is in serviceable condition ...

(d) The Applicant was not an AML Holder and was not qualified to assess the severity of the Four Defects and the risks they presented to safety. In light of the Four Defects as recorded in the AFTC and Mr. Maurer’s reminder (as reflected in the Email …) that the Helicopter was not suitable for flying until the rectification of the Four Defects, the Applicant could not have completed the Pre-Flight Checks.

(e) Therefore, pursuant to Article 8(7)(b) of AN(HK)O, the CoA had ceased to be in force from 21 November 2019 until 29 November 2019 (when the CRS[10] was issued). …”

72.Mr Hung then explained at paragraph 96 that during the course of the investigation, CAD also noted that the Applicant might not have complied with Arts 15(1), 22(2) and 32(c) of the Order.

73.At paragraph 98, Mr Hung concluded that CAD’s sole concern under Art 62(1) of the Order was public safety and aviation safety, and that CAD’s observations on the Applicant’s unfamiliarity with inter alia Arts 15(1), 22(2) and 32(c) were not taken as a consideration on whether to suspend the Applicant’s Licence.

74.It is important to note the Applicant has not sought to challenge the credibility of Mr Hung or sought leave to cross-examine him on his testimony set out above, in particular paragraph 98.

75.In Applicant 2 at paragraph 18, he complains that the Director has, in Hung 1, ex post facto proffered 3 alternative reasons to justify the Decision as fair and proper. In this court’s view, the Applicant is missing the point of Hung 1. Rather than proffering alternative reasons to justify the Decision, the Director was trying to explain that the Applicant’s flying the Helicopter while the CoA had ceased to be in force by virtue of Art 8(7)(b) was the sole basis of the Decision and that he had not taken into account other matters such as Arts 15(1), 22(2) and 32(c) in reaching the Decision, albeit the same were mentioned in it.

76.Second, as submitted by Mr Lui, the correspondence between CAD and the Applicant since the 21 Jan Letter, the Record of the Inquiry held on 23 April 2020 and the Representations made by the Applicant’s solicitors dated 7 May 2020 show the essence of CAD’s case against the Applicant had all along been he operated the Flight whilst the CoA ceased to be in force. This was clearly understood by the Applicant’s solicitors to be the case since they were able to and did make submissions as to why Art 8(7)(b) was not engaged because the CoA had not ceased to be in force during the relevant period ie 17 to 29 November 2019.

77.Third, and importantly, a careful consideration of CAD’s internal minutes M1 to M6 dated 13 January to 30 November 2020 and the File Note dated 14 December 2020 clearly support the Director’s contention that Art 8(7)(b) of the Order was the sole basis of the Decision.

78.In this regard, it is important to note that in M3 dated 25 November 2020, the author did (i) mention that a number of Articles of the Order including Arts 15(1), 22(2) and 32(c) might not have been complied with; (ii) refer to the unfavorable view of the HKAC on the Applicant’s behavior and character in light of certain adverse incidents that occurred while the Applicant was a member of the HKAC; and (iii) set out a table of deficiencies regarding the Applicant’s competency as a pilot. However, these matters were not stated in M3 as the basis of the Decision. In addition, there was no mention at all of the Applicant’s uncooperative behavior in the course of the Inquiry, especially his refusal to even admit that he was the pilot in question. These tend to show that the New Allegations or the Irrelevant Considerations had not been used as the basis of the Decision. To put matters beyond doubt, neither the New Allegations nor the Irrelevant Considerations were even stated in M5 dated 26 November 2020 or the File Note dated 14 December 2020 as the basis for suspending the Applicant’s Licence.

79.In these circumstances, there is force in Mr Lui’s submission that the Applicant’s approach in this case is incorrect because he reads the Decision Letter without regard to the factual context that Art 8(7)(b) had always been and importantly, had always been understood by the parties to be the sole issue in this case, and for that reason, had been the sole focus of their arguments as such for months since the 21 Jan Letter. It is also incorrect for the Applicant to read the absence of an explicit citation of Art 8(7)(b) in the Decision Letter as denoting that the Director had abandoned reliance upon that Article but had changed course instead.

80.For the above reasons, this court will decide the Primary Issue in favour of the Director.

81.It follows that Grounds 1 to 3(a) are hereby rejected.

Ground 3(b)

82.This Ground principally refers to the Director’s failure to give adequate reasons for the Decision.

83.In South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953 at [36], Lord Brown of Eaton-under-Heywood explained the law as follows:

“ The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. … Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. …”

84.In Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority (1997-98) 1 HKCFAR 279 at 291 D to F, Li CJ explained the requirement of adequacy of reasons:

“ First, the reasons given should show that the Tribunal has addressed the substantial issues before it and show why the Tribunal has come to its decision. There may not be any need however to address every single issue. But the reasons should show that the issues that arise for serious consideration have been considered.

…

Thirdly, the reasons may not require great elaboration and they may be brief. It is only when they are defective in substance that they should be considered inadequate. Ultimately, what are adequate reasons in the circumstances of a particular case has to be approached sensibly.”

85.In Capital Rich Development Ltd v Town Planning Board [2007] 2 HKLRD 155 at [98], Stock JA (as he then was) further explained the requirement as follows:

“ 98. What is sufficient will depend on the legal framework within which the body takes the decision and upon the case at hand. Sometimes a brief statement of reasons will suffice, because in context no more needs to be said. Sometimes, although the words employed in the reasons articulated might have been more clearly stated, a common sense approach in context of the reasons, or of the particular history, as a whole will readily reveal what was obviously intended and the courts should be loathe to permit scrutiny of reasons as if they constituted a statutory instrument. Reasoning must be examined with reality and contextual common sense. ...”

86.In the Decision Letter at paragraph 2, the Director had referred back to the 21 Jan Letter concerning the provisional suspension of the Applicant’s licence for having operated the Flight on 21 November 2019 when the CoA ceased to be in force under Art 8(7)(b). At paragraph 25 of the Applicant’s skeleton submissions, Mr Chang SC submits that the Director had wholly failed to elaborate in the Decision Letter what “inspection” or “maintenance” in Art 8(7)(b) he was referring to, on what basis the Director found the Applicant had failed to complete the required inspection or maintenance etc. Indeed, most of the explanation of the Director’s case, based as it was solely on Art 8(7)(b) as stated in Hung 1, have not been mentioned.

87.There is force in Mr Chang SC’s submission. Since it is the Director’s case that the Decision was based solely on Art 8(7)(b), as this court has found to be the case on the totality of the evidence before it, it is incumbent on the Director to give some explanation as to how it operated to cause the CoA to cease to have effect. While the reasons may not require great elaboration and can be brief, they must enable the reader to understand why the matter was decided as it was. Having considered the Decision Letter carefully, it is clear to this court the reasons given in the Decision Letter are inadequate.

88.When a public authority has failed to give adequate reasons in its decision, one potential remedy is to allow the authority another opportunity to provide reasons which may be achieved by permitting further evidence of the reasons to be adduced at the judicial review hearing. Another potential remedy is to quash the decision and require the decision-maker to reconsider the matter and take the decision afresh: Supperstone, Goudie & Walker Judicial Review (6th ed) para 10.66.

89.In this case, the Director has already filed elaborate evidence in the form of Hung 1 of the actual reasons for the Decision without objection from the Applicant. This court has considered the reasons given in Hung 1 and finds them sufficiently adequate to enable an informed reader to understand why the matter was decided as it was. In these circumstances, it would be futile to quash the Decision and remit the matter to the Director for fresh consideration. Having given his explanation of the reasons for the Decision, it is inevitable that the Director would reach the same conclusion based on those reasons even if the matter is remitted back to him: Wei Linghui v Hong Kong Federation of Insurers Insurance Agents Registration Board [2019] 4 HKLRD 387 at [32]; Sze Ning Hung v Director of Food and Environmental Hygiene unrep, CACV 160 of 2014, 29 December 2014, Cheung, Yuen and Chu JJA at [43].

90.For these reasons, notwithstanding the inadequacy of the reasons given in the Decision Letter, in the exercise of its discretion, this court is not minded to quash the Decision.

Ground 5

91.At paragraph 8(i) of the Decision Letter, it was stated that the Applicant’s licence be suspended until inter alia the following requirements were satisfied:

(1) obtaining a pass in the Theoretical Knowledge Examinations for the subjects of (i) Aviation Law, Flight Rules and Procedures (Helicopters), (ii) Aircraft (General) (Helicopters), and (iii) Aircraft (Type) as stipulated in CAD 54 Part 2, Chapter 2, paragraph 2.5.1, sub-paragraphs (a), (f) and (g);

(2) undergoing in a Flight Training Organisation acceptable to the CAD flight training and testing in order to verify his competence in the operations of the aircraft including pre-flight and post-flight duties.

92.In Hung 1 at paragraphs 114-122, Mr Hung explains in detail why these corrective measures are necessary for the purpose of ensuring flight safety which must be the paramount concern of the CAD.

93.In the Applicant’s skeleton submissions, he complains that the Decision to suspend his Licence pending the fulfilment of the test requirements was excessive and clearly wrong. In particular, for reasons expanded in the amended Form 86 at paragraphs 111-112, he submits that the test conditions are unreasonably onerous, which further magnifies the disproportionality of the suspension. In substance, the Applicant is not complaining that suspension of his Licence as such is excessive and clearly wrong. Rather, he is complaining about the stipulated re-training and testing requirements are too onerous and the practical inconvenience that he may encounter if he has to comply with them.

94.In Lie Han Ji v The Registrar of the Hong Kong Institute of the Certified Public Accountants unrep, CACV 265 of 2009, Cheung CJHC, Cheung and Chu JJA, 9 March 2012, a case cited by the Applicant, Chu JA observed at [56] - [57] as follows:

“56. On the sanctions imposed by the Committee, the appellant contends that the order of reprimand was wrong because it did not reflect the different role that Mr Yeung and the appellant played in the liquidation. In dealing with a complaint on the propriety of sanctions passed by a disciplinary tribunal, the court has always accord great weight to the decision of the tribunal whose members possess the expertise and know the appropriate standards that are expected of members of the profession and will only interfere with the tribunal’s decision when it is clearly wrong: MacLeod v. The Royal College of Veterinary Surgeons [2006] UKPC 39 at para 23.

57. In the present case, the Committee was aware that Mr Yeung and the appellant occupied different positions in the Firm and played different roles in the liquidation of the 28 Companies and had imposed a lighter financial penalty on the appellant (paragraph 17 of the Committee’s Reasons for Decision). Nevertheless the Committee considered that both Mr Yeung and the appellant should be reprimanded for their failings. In coming to this decision, the Committee, was exercising its professional judgment and expertise. The Committee, comprising members of the profession, no doubt has the required expertise and knowledge of the appropriate standards expected of members of the profession. The order of reprimand is within the reasonable ambit of sanctions that the Committee may impose on the appellant having regard to the nature and contents of the Complaints. There is no basis for this court to disturb the decision of the Committee.”

95.Earlier, in Chu Ping Tak v Commissioner of Police supra, DHCJ Andrew Cheung (as he then was), expressed the need to exercise judicial restraint in interfering with a decision on “sentencing”. At [50], the learned Judge said:

“ … As I said, the Court essentially plays a supervisory role over the decision of the tribunal below. It does not exercise an appellate role as such. This is true in relation to a decision on liability as well as a decision on punishment or sentencing. Unless the sentence or punishment is so out of proportion to the offence in question, as to be perverse or unduly oppressive, I see no ground for intervention.”

96.This court has considered Hung 1 at paragraphs 114-122 where Mr Hung explained why the testing and re-training measures are necessary for the purpose of ensuring flight safety. This court has also considered Hung 1 at paragraph 135 which shows, as submitted by Mr Lui, that the alleged practical inconvenience occasioned by those measures has been exaggerated by the Applicant. In this court’s view, aviation safety is such an important yet extremely technical field that one should not lightly interfere with the CAD’s decision as to how best to maintain the high professional standard of discipline imposed on pilots in general and the Applicant in the present case. This court does not see the testing and re-training requirements to be so out of proportion to the offence as to be perverse or unduly oppressive, or any other ground for intervention.

97.For these reasons, Ground 5 is hereby rejected.

Disposition and costs order nisi

98.This court hereby dismisses the application for judicial review substantively. However, given that the threshold for granting leave is whether the Applicant’s case is reasonably arguable, which this court finds it is, this court would formally grant leave to the Applicant.

99.Costs should follow the event. There shall be an Order nisi that costs of these proceedings be to the Director with certificate for three counsel, to be taxed if not agreed, and paid by the Applicant forthwith.

100.There shall also be an Order nisi that costs of the Director’s summons dated 30 July 2021 in relation to the challenge to paragraphs 29-36 of Sears 1 and costs of and occasioned by the Applicant’s amendment summons dated 4 August 2021 be to the Director, with certificate for three counsel, to be taxed if not agreed, and paid by the Applicant forthwith.

101.Lastly, this court thanks the legal teams on both sides for their able and helpful assistance.

Mr Denis Chang SC, Mr Carter Chim and Ms Wan-ying Lau, instructed by Tim Chan & Co, for the Applicant

Mr Mike Lui, Mr William Liu and Ms Sanyi Shum, instructed by the Department of Justice, for the Putative Respondent