Rich Engineering Ltd v. Fire Service Installation Contractors Disciplinary Board and Another
Read the full judgment text of HCMP 2378/2020 on BabelCite. This High Court CFI judgment was delivered on 1 March 2024.
1. Rich Engineering Limited (“ REL ”), the Appellant, was at all material times, a fire service installation (“ FSI ”) contractor registered with the Fire Services Department (“ FSD ”) as a contractor in Class 1 and Class 2 FSI works.
Cited by 2 cases · Cites 17 cases
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HCMP 2378/2020 [2024] HKCFI 648 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLEANOUS PROCEEDINGS NO 2378 OF 2020 (an appeal from Fire Service Installation Contractors Disciplinary Board) ________________________
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A. INTRODUCTION 1.Rich Engineering Limited (“REL”), the Appellant, was at all material times, a fire service installation (“FSI”) contractor registered with the Fire Services Department (“FSD”) as a contractor in Class 1 and Class 2 FSI works. 2.The Fire Service Installation Contractors Disciplinary Board (“Board”), the 1st Respondent, was at all material times a statutory body appointed by the Chief Executive under Regulation 9(1) of the Fire Service (Installation Contracts) Regulations (Cap. 95A) (“Regulations”) to inquire into and deal with any matters referred to it under Regulation 10(1). Save as otherwise specified, all references to Regulations below shall be to Cap 95A. 3.On 1 December 2020, REL was ordered by the Board to be removed from the Register of Fire Service Installation Contractors (“Register”) in Class 1 and Class 2 for a total period of 9 months pursuant to Regulation 10(2) in 10 cases nos. FSICDB20-12, 13, 19 to 28 (“the Order”). 4.By a Supplementary Notice of Originating Motion dated 11 January 2021, REL appealed against the Order on Cases #19 to 28 pursuant to Regulation 12(2) and sought the following reliefs:
B. BACKGROUND 5.At the relevant time, FSD inspected the FSI works carried out by REL for its customers at, amongst others, 2 locations:
6.By letters dated 7 October and 17 November 2020, the Director wrote to REL informing REL that he had decided to refer, 12 cases to the Board and invited REL to attend the inquiry hearing before the Board fixed on 1 December 2020 (“Inquiry Hearing”). Statements of Grounds of each of the Cases (“Statement of Grounds”) were attached to the Director’s letter dated 17 November 2020. 7.On 24 November 2020, the Director sent the brief facts (“Brief Facts”) and other relevant materials of the Cases to REL. 8.On 1 December 2020, the Inquiry Hearing was conducted in 4 sessions with 4 sets of consolidated facts for 12 Cases (i.e. including 2 Cases not appealed against).
9.At the end of the Inquiry Hearing, the Board found all Statements of Grounds in the Cases proved against REL. The Board imposed the following sentences:
4 months’ removal in respect of Cases #12, 13 and 19-22 were to run consecutively to 5 months’ removal in respect of Cases #23-28, making a total of 9 months. 10.On 3 December 2020, the Board served the Order on REL. 11.On 31 December 2020, REL lodged the present Appeal. C. GROUNDS OF APPEAL 12.REL has put forward 19 grounds of appeal, which may be grouped into the following:
D. LEGAL PRINCIPLES D1. The Statutory Framework under the Regulations 13.The Board is a statutory body appointed by the Chief Executive under Regulation 9(1) to inquire into matters referred to it under Regulation 10(1). 14.Pursuant to Regulation 9(2), the Board consists of 6 members:
15.Under Regulation 10(1), the Director may refer a matter to the Board if a registered contractor has been convicted of an offence or has been guilty of improper conduct or negligence, in the installation, maintenance, repair or inspection of any FSI, (i) rendering him unfit to be on the Register; or (ii) making his continued inclusion in the Register prejudicial to the due administration of the Fire Services Ordinance (Cap. 95) (“FSO”). 16.Under Regulation 10(2), if, after due inquiry, the Board is satisfied with the guilt of the registered contractor, the Board may make a removal order for the name of the registered contractor to be removed from the Register, either permanently or for such period as it thinks appropriate; or an order for reprimand. D2. The Test to be Adopted in this Appeal 17.Regulation 12(1) provides that a registered contractor who is aggrieved by an order made in respect of him by the Board under Regulation 10(2) may appeal to the Court of First Instance (“CFI”), which may confirm, reverse or vary the order of the disciplinary board, and may exercise any power which the board might have exercised. 18.Order 55 rule 1 of the RHC provides that Order 55 shall apply to every appeal which by or under any enactment lies to the CFI from any court, tribunal or person. Therefore, Order 55 applies to the present Appeal. 19.Order 55 rule 7(7) provides as follows:
20.Even if there was procedural irregularity in the tribunal below, it does not follow that the Court must remit the case to the tribunal for re-trial. It depends on whether there was substantial miscarriage of justice. It is only if it is plainly and unarguably right notwithstanding the misdirection that the decision could stand. If the conclusion was wrong or might have been wrong, then it is for an appellate tribunal to remit the case to the only tribunal which was charged with making findings of fact. See Wong Yin Fong & Others v ISS Hong Kong Services Ltd [2005] 2 HKLRD 687, Lam J (as he then was) at §74; following Sir John Donaldson MR in Dobie v Burns International Security Services [1985] 1 WLR 43, at 49B-D. E. MISJOINDER OF THE DIRECTOR 21.Before analysing the grounds of appeal in detail, there is an issue as to whether the Director has been properly joined as a respondent in this Appeal. 22.REL’s position is that the Director should be joined as a respondent because of the roles undertaken by him in the present case:
23.However, I agree with Ms Ling, counsel for the Respondents, that there is no legal basis to join the Director as a respondent in this Appeal:
24.Mr Fung and Mr Lee Kin Wang (counsel for REL) cite 2 cases on judicial reviews of decisions of tribunal and boards in support of their contention that it is the “usual practice in Hong Kong” for a tribunal to take a neutral role in the appeal and hence it is prudent for REL to include the Director as a respondent. With respect, those 2 cases are distinguishable:
25.In the present case, the Director did not make any decision on merits and the Board did not consider any decision made by the Director at the Inquiry Hearing. 26.REL then complains that FSD published in its website a notice of the Order, stating that REL was removed from FSD’s registers of Class 1 and 2 Fire Service Installation Contractors for 2 weeks from 16 February to 1 March 2021. There was a remark in that notice that referred to 12 Cases before the Board and the Order of removal of REL’s name from the Registers (“Removal Order”) for 9 months. The notice also mentioned that REL had lodged an appeal for 10 of the 12 cases but the sentence of 2 weeks for the remaining 2 cases was to be served independently. REL complained that FSD had failed to comply with Regulation 10(4)(a) which provides that:
27.The Director had wrongly gazetted the 10 Cases now under appeal. However, no relief is sought by REL from the Director. The Director has not breached Regulation 10(4)(a) because he has not yet enforced the Order. As of the date of this hearing, REL’s name still remains on the Register. 28.In the circumstances, I am of the view that the Director has been misjoined as a respondent in these proceedings, and REL is liable for the costs incurred by the Director as a result of such misjoinder. F. GROUND 1AA-CONTRAVENTION OF MANDATORY STATUTORY PROCEDURE GROUND 29.Regulation 9(3) provides as follows:
30.REL’s complaint is that Regulation 9(3) provides for a mandatory requirement that the Legal Adviser shall conduct the Inquiry Hearing, which cannot be delegated to others, including the Chairman himself. However, in the present case, it was the Chairman instead of the Legal Adviser who conducted the Inquiry Hearing. That was ultra vires and unlawful. 31.REL cites the case of Rowse v Secretary for the Civil Service [2008] 5 HKC 405, on unlawful delegation of duties. In that case, the Chief Executive himself was specifically required by s. 20(1) and (2) of the Public Service (Administration) Order to “consider and act upon each representation as public expediency and justice to the individual may require”, but he wrongfully delegated such duty to the Chief Secretary. 32.I reject the argument. There is nothing in the Regulations which prohibits the Chairman, who could give direction, from conducting the proceedings himself. 33.In any case, as can be seen from the transcripts for the Inquiry Hearing (“Transcripts”), the Legal Adviser was conducting the proceedings including giving legal advice to the Board under the direction of the Chairman and pronouncing the rulings. There is no suggestion that the Legal Adviser had carried out such acts contrary to the direction of the Chairman. There is also no evidence that the Legal Adviser had delegated what she was directed to do by the Chairman to someone else. Therefore, there was no breach of Regulation 9(3). Ground 1AA fails. G. GROUND 1BB – DUAL ROLES GROUND 34.REL complains that the following amounts to a breach of the rules of natural justice and serious apparent bias to a bystander:
35.REL’s attack is on the structural composition of the Board which gives rise to apprehension of breach of natural justice and bias. 36.The case of Wong Tak Wai v Commissioner of Correctional Services [2010] 4 HKLRD 409 deals with such attack. There, the Superintendent determined, in prison disciplinary proceedings, that various offences were committed by an inmate in a prison headed by that Superintendent. The prisoner appealed to the Commissioner of Correctional Services, which was dismissed. The prisoner instituted judicial review proceedings. At first instance, all the determinations were quashed for, amongst others, lack of an independent and impartial tribunal. The Court of Appeal, by a majority, allowed the appeal in part. Although there was difference in opinion as to whether there was apparent bias at the first tier of the Superintendent, the legal principles expounded by the members of the Court of Appeal did not much differ.
37.The majority held that a fair-minded and informed observer would not come to the automatic and sweeping conclusion that there was a reasonable apprehension of bias on the part of the Superintendent unless, on the facts of a particular case, something more was present to tip the scales (§§137-143). The reasons are that:
38.Kwan JA held (minority) that legitimate doubts over lack of independence could lead to reasonable misgivings over impartiality, whether the adjudicating Superintendent would be free of a predisposition to favour the interests of either side. Public perception from an objective viewpoint would conclude there was a real possibility that the adjudicating Superintendent might be subconsciously biased. 39.All members of the Court held that the curative principle applied as the determinative process as a whole cured procedural unfairness due to the rehearing before the Commissioner. 40.Mr Fung relies on the dissenting judgment of Kwan JA and the obiter dicta in the case of Gillies. 41.On the facts of Gillies and applying the same fair-minded and informed observer test, the House of Lords unanimously held that the fact that a doctor sat on an appeal tribunal for determining disability allowance for claimants and provided medical reports to the Benefits Agency did not give rise to apparent bias. Mr Fung, however, relies on the obiter dicta of Lord Rodger at §33 of Gillies that the position might have been different if there had been any reason to suppose that the members of the Nestor pool of doctors were a close-knit group sharing espirit de corps. 42.Mr Fung also relies upon Otis Elevator Company (HK) Limited v Lift Contractors’ Disciplinary Board (unrep., HCMP 3609/1993, 6 June 1994) in support of his argument that it is wrong for a representative of an authority to sit on the board and be the chairman in respect of disciplinary actions brought by that authority. 43.Regrettably, Mr Fung has not told the Court that Otis Elevator was unanimously overturned on appeal in CACV 184/1994 on 11 April 1995 and the ruling was against him on the law. 44.In that case, Litton V-P (as he then was) first noted that if the same official investigated the complaint, appointed the disciplinary board, prosecuted those charges and finally sat in the board, then the board would not be considered as independent and impartial:
45.The learned VP then looked at the statutory scheme involved in that case, i.e. s. 11G of the Lifts and Escalators (Safety) Ordinance (Cap. 327) (now repealed), which was analogous to that in the present case, i.e. the Director of Electrical and Mechanical Services’ role was to refer the matter to the disciplinary board and the board might impose disciplinary penalties after it was satisfied that the contractor may have been guilty of negligence or misconduct after due inquiry. The following remarks were made by the learned VP at §27:
46.The Court of Appeal in Otis Elevator held that there was no breach of Article 10 of the HKBORO with the Director of Electrical and Mechanical Services sitting as the chairman and board member, as well as one of its staff being the presenting officer in the disciplinary proceedings. 47.Applying the authorities in Section G, there was no breach of natural justice or apparent bias in the present case for the following reasons:
48.Even if there were any defects in the composition of the Board, it would have been cured by the appellate mechanism in Regulation 12. Regulation 12(3) provides that “the practice in relation to an appeal under this regulation shall be subject to any rules of court made under the High Court Ordinance (Cap. 4)”. That would include Order 55 rule 7(2), which empowers the Court to, amongst others, receive further evidence on questions of fact. Therefore, the CFI has full jurisdiction to deal with an appeal as the nature of the Board’s decision requires. 49.The Dual Roles Ground fails. H. Ground 1A AND 1C– DEPRIVATION OF REPRESENTATION GROUND 50.REL complains that Mr Wong was only asked “agree or not”, but was not allowed to express any opinion at the Inquiry Hearing. REL relies on how Mr Wong pleaded to the charge in Case #23. 51.However, REL’s submission is contradicted by the Transcripts:
52.What I find to be problematic is the equivocal nature of Mr Wong’s plea, which the Board should not have accepted as an admission. I will come back to this in Section K (§91-94) below. 53.In other parts of the Transcripts, one can also see that Mr Wong was given the opportunity, after admitting Case #28, to explain. He did, “我個段時間其實我好想上去嘅，但係公司真係環境好差，我要通處撲啲即係唔想講撲錢嚟出糧啦又剩啦好煩，所以一路都冇上嚟。如果我唔係想上嚟呢我唔會話叫佢延期嘅，呢樣野我知道係我錯嘅，我冇野講啦。” (B/116-117). After a Board member asked Mr Wong why he previously gave a statement to FSD that he would not provide any information and attend the meeting with FSD, Mr Wong was allowed to give his explanation, again without any interruption from the Board (B/117-118). 54.At no time had Mr Wong asked for adjournment to seek a lawyer. I therefore see no merit in the Deprivation of Representation Ground. I. Grounds 1B & 1C – SELF-INCRIMINATION GROUND 55.REL alleges that the Board erred in law in:
56.Regulation 11(3) of the Regulations provides that:
57.The principles on privilege against self-incrimination (“PSI”) have been authoritatively stated in Fu Kin Chi v The Secretary for Justice [1998] 1 HKC 411 at 419D, §28, Li CJ:
58.The Board had not compelled Mr Wong to incriminate himself. By asking Mr Wong whether he admitted the Statement of Grounds and the Brief Facts, the Board was merely putting the Cases forward and asking if he agreed to it. If he agreed, the Board would proceed to the sentencing stage. If not, the Cases would go to trial. That was to chart the course of the proceedings. There was nothing wrong. 59.Further, PSI must be claimed on oath by the party asserting it on his own behalf and proved by evidence. It is not enough for the party invoking the privilege to establish that he is facing a real risk of prosecution of a particular offence. He must go further and establish that requiring him to provide disclosure has a tendency to expose him to a criminal charge. It behoves the party asserting the privilege to identify which provisions or offences he is said to be potentially liable for, as such identification enables the court to assess, by reference to the circumstances of the case, whether the asserted risk is a real and appreciable one. This is important, as the Court must make sure that the privilege is not abused: Yu Quan Li & Anor v Suen Kin Wing [2023] 5 HKLRD 98 at §105 per DHCJ Winnie Tsui. 60.In this appeal, REL simply asserts that Mr Wong was compelled to answer incriminating questions without identifying which provisions or offences REL may be potentially charged for. 61.In any event, Mr Wong would lose his PSI if he has not claimed it before producing the incriminating documents or answering the incriminating questions, whether or not he knew of the privilege. The witness will suffer the consequences and no retrospectivity of protection will be available: see Anite Telecoms v World Best Cargo-Link Co Ltd (unreported, HCA 2560/2013, 19 October 2015) at §§139-141 per B Chu J. 62.Further, the fact that Mr Wong was not reminded of his right not to answer any incriminating questions and hence could not have asserted PSI was irrelevant. It is well-established that a witness is presumed to know the law and therefore, strictly speaking, should make any objection to answer a question himself: Archbold 2023 at §12-104. 63.The fact that REL was acting in person was also irrelevant. Since REL chose to act in person, it had to read the relevant rules and provisions itself, and take all actions to protect its rights: Poon Sin Mei Cindy v FWD Life Insurance Company (Bermuda) Ltd (unrep., HCMP 1456/2016, 30.9.2016), at §31. 64.For the reasons given, the Self-Incrimination Ground fails. J. GROUND 1C – NO CROSS-EXAMINATION GROUND 65.By Ground 1C, REL alleges that the Board erred in law:
66.REL pleaded guilty to all charges and admitted the Brief Facts. It is difficult to see what useful purpose there would be in calling witnesses. 67.The Brief Facts had summarized the evidence of FSD against REL. It was open to REL to agree or not agree any part of it, as evidenced by Mr Wong’s response to Case #23. 68.Further, hearsay evidence is admissible under section 47 of the Evidence Ordinance, Cap 8. It is, rather, a question of weight to be put on the hearsay evidence. As Lord Denning puts it in Miller (TA) Ltd v Minister of Housing and Local Government [1968] 1 WLR 992 at 995B-G:
69.For the reasons given, the No Cross-Examination Ground fails. K. GROUNDS 2, 7A and 8A – FAILURE TO GIVE REASONS GROUND K1. Duty to Give Reasons 70.Where the statute or regulation provides a right of appeal from a decision (Regulation 12 in this case), reasons will most likely be required so as to enable the affected individual to exercise effectively that right: De Smith §9-133. 71.As to the adequacy of reasons required of a tribunal which operates in the context of a statutory framework, the leading case is Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority [1998] 2 HKLRD 857 where the Court of Final Appeal held at §§39 and 42-45 that:
72.Reasoning must be examined with reality and contextual common sense. That said, where a real issue arises as to whether an allegedly material issue was or was not taken into account, or what was at the end of the day made of that issue by the decision-maker, the courts are entitled to expect the answer to be sufficiently clear from the evidence before it without having to resort to guesswork : Capital Rich Development Ltd v Town Planning Board [2007] 2 HKLRD 155 at §98I-J Stock JA. 73.The Court should not intervene on the basis of an alleged failure to give reasons unless the applicant can discharge the burden of satisfying the Court that he has genuinely been prejudiced by the alleged failure: Leung Sze Ho Albert v Bar Council of Hong Kong Bar Association [2016] 5 HKLRD 542, at §73; and Order 55 rule 7(7) of RHC. K2. Were Reasons Given? 74.It is common ground that the Board failed to give any reasons for its findings of guilt, other than to repeat the contents of the Statement of Grounds and/or Brief Facts. One set of Brief Facts was for Cases #19-22 (“Brief Facts 1”) concerning Location 1 and another for Cases #23-28 (“Brief Facts 2”) concerning Location 2. 75.In Brief Facts 1, after setting out the details of the evidence, §10 summarized why each charge was established, that the conduct complained of made REL unfit to be on the Register or its continued inclusion in the Register would be prejudicial to the due administration of the FSO. It was not difficult for a reader to correlate each part of the facts to the relevant Case #number. Applying contextual common sense, one can easily see that Brief Facts 1 purported to include and the Board relied on those facts to find each Case proved. 76.Brief Facts 2 have a similar layout in terms of contents with Brief Facts 1, but its §9 actually named the Case #number and summarized why that Case was established. 77.Accordingly, the Board had given reasons for its findings by adopting the Brief Facts. K3. Were the Reasons Adequate? 78.Mr Fung points out that neither “improper conduct” nor “negligence” are statutorily defined in the Regulations. Obviously from common sense and from the ranges of penalties specified under Regulation 10(2) (a) or (b), there is a difference between “impropriety” and “negligence”. His complaint appears to be that the Board did not give reasons as to what conduct was improper and what was negligent. 79.With respect to Mr Fung, “improper” simply means not acceptable or right for someone or something: Cambridge Dictionary. “Negligent” means having a duty of care but REL breached it and fell below the standard of a reasonable registered contractor in that trade. Both terms are assessed by an objective standard. 80.I now analyse each Case, based on the Statement of Grounds and Brief Facts accepted by the Board. The civil standard of proof applied. The more inherently improbable the act in question, the more compelling would be the evidence needed to satisfy the court on a preponderance of probability: Solicitor (24/07) v Law Society of Hong Kong (2008) 11 HKCFAR 117 at §116. 81.Case #19: REL did annual inspection of Location 1 on 2 May 2019 and issued the certificate on the 3rd. It was based on an inspection on 22 November 2019 that the FSD alleged that the certificate was false and misleading. REL submits as follows:
82.I agree that those submissions do raise a doubt as to the finding of guilt even on the civil standard of proof. 83.Ms Ling acknowledges that Regulation 8(a) of Cap. 95B imposes on owners the responsibility of keeping the FSI in efficient working order at all times. However, by virtue of Regulation 7 of Cap. 95B, no person other than a registered contractor shall maintain, inspect or repair any FSI which is installed in any premises. Therefore, a registered contractor has the responsibility to help owners to ensure that all the maintenance, inspection and repair works performed by them are up to the requisite standard (i.e. compliant with the requirements specified by the Director in the Code of Practice as provided in Regulation 10(2) of Cap. 95B). It is unacceptable for REL to shift such responsibility to the owners. 84.Ms Ling may be right. However, REL was charged with issuing a false certificate on a particular date, not failure to keep up the maintenance of the FSI. The conviction on Case #19 was unsafe. 85.Case #20: §§9 and 10 of Brief Facts 1 showed that REL had failed to stick the blue label on newly completed but not yet operative FSI. In this Appeal, REL claims that it was premature for FSD to assert allegations of impropriety or negligence when FSI improvement works (under a separate contract) were still ongoing for Location 1 at the material time. 86.I fail to see how that can be a defence. Even if improvement works were ongong, blue labels could still have been stuck. It was plainly improper not to do so, if not also negligent. In case of fire, FSD or the occupants may not be aware that the FSI was not put into operation and that may delay the fire fighting process and cause harm to the owners/occupants. 87.Cases #21 and 22: §§8 and 10 of Brief Facts 1 showed that REL had failed to give notice to or fresh notice to FSD to shut down FSI for works. REL admitted the same and has not put forth any other version in this appeal. The failure was improper, if not also negligent. In case of fire, there may be delay in the fire fighting process if FSD did not know that FSI was shut down. This may harm the owners/occupants. 88.For Cases #23 to 27, REL makes general complaints that the Board had failed to consider that the FSI works were the subject matter of commercial contracts entered into separately between REL and the owners/users of Shops B and C; that there were occupants at Shops B and C and hence the actual progress of works depended on the practical arrangement to suit those occupants. Neither the Board nor FSD had jurisdiction to adjudicate on REL’s performance and its progress arising from a commercial contract. Further, REL submits that there was lack of factual witness’ evidence from Shop B owner to support Cases #25 to #27. 89.I see no merit in REL’s general complaints. The Board was not adjudicating on commercial contracts but the conduct of REL as a registered contactor. This is no different from a solicitor’s disciplinary tribunal investigating the conduct of a solicitor who has provided services to a client under a retainer. 90.I am more concerned about Shop B owner’s refusal to give a statement. I will deal with this in §97 in Case #26 below. 91.Case #23: §9(i) of Brief Facts 2 showed that REI had not done any FSI work within a reasonable period. The Statement of Grounds did not state what the reasonable period was although the time frame specified therein and in Brief Facts 2 was 2 ½ years. The contract between Shop C owner/manager and REL did not specify the completion date. 92.Mr Wong initially denied that REL failed to install FSI in Shop C within a reasonable period. He then made this statement (B86-87):
93.His subsequent plea of guilty was, in my view, at best equivocal. Whilst he had admitted to delay, he appeared to have attributed the delay to the occupant. When did he refund the money to the landlord and terminate the contract? Was it before the alleged lapse of a reasonable period? In respect of Shop C, Mr Wong claimed that the plans had been approved and that work was to commence on the 12th (presumably of December 2020, after the Inquiry Hearing). The project was given back to him to complete. Had the landlord “waived” the delay? Did those facts have any impact on the definition or extension of reasonable period? Mr Wong plainly did not know what constituted “delay”. Given such uncertainties, a plea of “not guilty” should have been entered. 94.REL’s case on Appeal is that the Board failed to take into account that there were occupants at Shop C who had refused to cooperate with REL despite numerous requests. The staff of REL had tried to seek the occupants’ permission to enter into the premises but in vain. It was impossible for REL to carry out works for inspection and drawings, let alone for installation. The owner of Shop C was made fully aware of the difficulties encountered by REL through regular telephone conversations. Mr Wong thus denies now that REL had failed to complete the installation works within a reasonable time. Due to contractual disputes between REL and Shop C’s owner, the contract was terminated and the deposit of $65,230 was refunded to Shop C’s owner on 15 September 2020. The 2nd affirmation of Mr Wong stated that he would continue with the project as the plans have now been approved. These, if placed before the Board, may influence its decision. Conviction on Case #23 was unsafe. 95.Case #24, §9(ii) of Brief Facts 2 showed that REL had all along represented to the representative of Shop C’s owner that REL would provide the relevant floor plans to FSD for approval, but FSD’s records were that no such floor plans were ever submitted by REL. REL has not challenged such evidence in this Appeal. There is no reason to disturb the conviction. 96.Case #25: Brief Facts 2, §9(iv) showed that REL had failed to install FSI of Shop B within reasonable time. The Statement of Grounds did not state what the reasonable period was although the time frame specified therein and in Brief Facts 2 was over 2 years. The contract between Shop B owner/manager and REL did not specify the completion date. Shop B owner did not give a statement to FSD. However, the independent evidence of FSD officer Tso Kwong Chi was that the sprinkler was installed in 2018 but until 20 March 2020, it was still not connected to water supply and the FSI plans were not approved by FSD. There was enough evidence to convict. REL has not put forth other evidence in the Appeal. 97.For Case #26, Brief Facts 2, §9(iv) and the witness statement of Tso Kwong-chi (FSD officer) showed that there was installation of sprinkler heads and pipes in 2018 but they were not connected to water supply. Plans were also not approved for Shop B. There was independent evidence from a Mr Lo who had dealt with matters relating to Shop B. There was Kei Yip (the main contractor) who stated that it had not received notifications from Shop B owner and his contractor to carry out works to connect the pipes for FSI to Shop B. FSD only had the hearsay evidence from Shop B owner who told Tso Kwong-chi (FSD officer) that it was REL who installed the sprinkler heads and pipes in December 2018. Shop B owner refused to give a statement. Whilst hearsay evidence is admissible, it is not clear when and what false or misleading information was given by REL to Shop B owner and whether he/she was misled. The available evidence may not meet the standard of proving a charge involving dishonesty on the part of REL. Conviction on Case #26 was unsafe. 98.Case #27: Brief Facts 2, §9(v) proves the failure of REL to stick a blue label on FSI that was not yet activated. FSD had first hand evidence from its officer and did not need to rely on Shop B owner’s evidence to establish this. REL also failed to put forth any defence in this Appeal. 99.Case #28: Brief Facts 2, §§8 and 9(vi) stated that it was Mr Wong who made 3 requests to adjourn the meetings with FSD in the first place. He explained to the Board that he had wanted to go but the condition of his company was poor. He was already troubled by the need to seek money for issuing wages. If he had not wanted to come, he would not have asked for adjournment. In this Appeal, he claims that when he asked if he was obliged to attend, the FSD officials told him that he was not. He was not told the legal consequences of not attending the interviews. 100.He did not so assert in mitigation at the Inquiry Hearing this alleged conversation with the FSD officials. This alleged conversation appears to be an afterthought. However, I still need to see if Case #28 was established. 101.There are 3 elements to the charge: (i) failure to provide information to FSD; (ii) the information was in relation to improper conduct or negligence in installation of FSI; and (iii) it impeded FSD’s investigation. It is not clear from the documents before me why REL had an obligation to attend meetings and/or was obliged to provide information. It is not clear from Brief Facts 2 that FSD had formed a view (at least a prima facie one) that there was improper conduct or negligence and/or informed REL of this when inviting REL to attend the meetings. The causation between impediment to FSD’s investigation and REL’s failure to attend/provide the information was not clear. The facts did not support the charge and the conviction cannot stand. 102.In summary, I find that the Board has failed to give reasons or adequate reasons in respect of Cases #19, 23, 26 and 28. L. GROUND 3 – INSUFFICIENT PREPARATION TIME GROUND L1. Legal Principles for giving Adequate Notice 103.According to De Smith, §9-056, procedural fairness generally requires that persons liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed, so that they may be in a position:
104.Moreover, if prejudicial allegations are to be made against a person, they must normally be given particulars of them before the hearing so that they can prepare their answers. The level of detail required must be such as to enable the making of “meaningful and focused representations”: De Smith at §9-084. 105.See also AIA International Limited v Appeals Tribunal of the Hong Kong Federation of Insurers [2017] 5 HKC 83, where Zervos J held at §125 as follows:
L2. Insufficient Notice 106.REL complains that the documents were only provided to it at a late stage before the Inquiry Hearing, and hence REL did not have sufficient time to make representations and consider legal representation. Therefore, REL has not been given a fair trial as provided for under Article 10 of HKBOR. 107.Ms Ling submits that REL had had ample time to appoint lawyers and prepare for its case after being informed about the Director’s decision to refer the Cases to the Board on 9 October 2020. Full disclosure of documents have also been made to REL prior to the Inquiry hearing. And yet REL never expressed, whether before or during the Inquiry Hearing, that it did not have sufficient time to appoint lawyers or make representations, or that disclosure was lacking. Ms Ling submits that this Ground is nothing but an afterthought in this Appeal. 108.With respect to Ms Ling,
109.Given the number of charges, the one week given to REL to consider all the documents was, in my view, insufficient, especially since the charges were disciplinary in nature and might affect the reputation and livelihood of REL. L3. Curative Principle to Apply 110.The appeal procedure to the CFI can cure the defects in the procedure before the Board. This Court can consider evidence on appeal. 111.Even though this Court may receive further evidence in this appeal, the onus is on REL to justify the exercise of the Court’s discretion in its favour. Merely showing the evidence sought to be introduced is relevant is not enough. The Court will take into account various factors when exercising its discretion including (i) whether the evidence could have been filed earlier and, if so, how much earlier; (ii) explanation for the delay in filing; (iii) the potential significance of the new evidence; and (iii) whether or not the other side will be significantly prejudiced by the admission of the evidence in a way which cannot be compensated, e.g. by an order for costs: Gemology Headquarters International LLC v Gemological Institute of America Inc [2014] 5 HKC 145, §§3-4, Au-Yeung J. 112.By the time this Appeal was heard, REL already had had the documents for more than 2 years and hence should already have sufficient time to formulate its “comprehensive” defences. 113.The Court of Appeal has held that where an unequivocal plea of guilty has been properly entered it would be rare for an applicant to succeed in showing that a conviction is unsafe or unsatisfactory: HKSAR v Nur Mei Lina [2018] HKCA 383, §89. L4. Substantial Wrong or Miscarriage of Justice 114.REL’s evidence could have been presented at the Board. The current evidence is not in its best form but there is no suggestion that the Board would be prejudiced by the admission of REL’s evidence. Given my analyses in §§81-97 above. Case #19, 23 and 26 might have been pleaded or decided differently if REL had been given more time to prepare or to instruct a lawyer. I find that there was substantial wrong or miscarriage of justice which warrants intervention by the Court. Conviction in those 3 Cases should be set aside and the 3 Cases be remitted for re-trial before a differently constituted Board. Ground 3 is established to this extent. M. GROUNDS 7B, C, D and 8B, C, D, F – ERRORS OF FACT GROUND 115.Given my analyses of each Case under Section K, it is not necessary to deal with these Grounds. N. GROUNDS 4, 5 AND 6 –SENTENCE GROUND 116.It cannot be disputed that the Board has failed to give any reasons for sentence, including why it preferred removal orders to reprimands, the length of the period of removal, why periods were to run concurrently or consecutively and how the totality principle applied to all 10 Cases. Despite the lengthy submission by the Presenting Officer after the convictions, the Board has not even indicated whether it accepted that submission. Accordingly, the matter should be remitted to the Board to reconsider the sentence in the light of 6 cases of which the conviction stand and give reasons for the sentences in respect of Cases #20-22, 24, 25 and 27. 117.I mention, for the sake of completeness, that it is not appropriate for Mr Fung to rely on some gazettes to show that the sentences for the present Cases were too severe. Those gazettes do not set out the factual bases or legal principles on sentencing and cannot serve the function of precedents. Still less is it proper to produce those gazettes only at the bar table, as the Board was precluded from making meaningful comments on them or putting forth evidence in rebuttal. O. CONCLUSION AND COSTS 118.REL succeeds on the Failure to Give Reasons Ground, Insufficient Preparation Time Ground and Sentence Ground in relation to Cases # 19, 23 and 26. Those cases should be remitted to the Board, differently constituted for a re-trial. Conviction under Case #28 is set aside. Cases # 20, 21, 22, 24, 25, and 27 are remitted to the same Board to reconsider the sentence and give reasons for sentence. 119.Costs should follow the event and be to REL, but it should bear the costs of the Director (which I apportion as 10% of the costs of this Appeal). Costs have been increased by the wide ranging but not all useful grounds of appeal. On a board brush approach, I order the Board to bear 90% of REL’s costs at $180,000. I make an order nisi to that effect. 120.I thank counsel for their assistance.
Mr. Derek Fung and Mr. Lee Kin Wang, instructed by Patrick Mak & Tse, for the appellant Ms. Ebony Ling and Ms. Vicky Wong (Government Counsel), instructed by Department of Justice, for the 1st and 2nd respondents [1] Article 10 of Hong Kong Bill of Rights (“BORO”) provides that “all persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law…” [2] i.e. Cases #12 and 13 (not appealed against) and Case #19-22. [3] Mr Wong’s 2nd affirmation (§21) clarified that he really meant Shop C . | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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