柳洋豪 v. 運輸署署長

HCAL 246/2025

[2025] HKCFI 2612

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 246 OF 2025

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D E C I S I O N

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A. Introduction

1.By Form 86 filed on 21 January 2025, the Applicant was an approved car tester (“ACT”) and responsible person (“RP”) for a car testing centre (“CTC”).  He is aggrieved by the results of tests which he failed, and which he had taken seeking to retain that status.  By this application, the Applicant seeks to compel the Putative Respondent (“Commissioner”) to “review the test result of the refresher course in a fair, open and impartial manner” and to “clearly indicate the wrong answers and the parts that are erroneous and not up to standard; and specify the reasons”.

2.On 7 February 2025, I gave directions for the Commissioner to file an Initial Response to the application, and to permit the Applicant to file a Reply to that Initial Response (“Reply”).  Both documents have been filed.  The Initial Response was signed by Ms Emily Kwong, Senior Government Counsel (Ag), and Ms Michelle Lee, Government Counsel.

3.Having considered the various documents filed, it seems to me that this is a proper case for paper disposal.  This is my Decision.

B.     ACTs and RPs

4.The Applicant was authorised as an ACT under section 88F(1)(d) of the Road Traffic Ordinance Cap 374 (“RTO”) from July 2009 to October 2010, and from 26 February 2016 to 7 April 2016. An ACT is tasked with carrying out vehicle examinations of private cars and lights goods vehicles to ensure that they are roadworthy.

5.From 8 April 2016, the Applicant was authorised in writing by the Commissioner to become an RP under section 88F(1)(e) of the RTO at car testing centres in respect of the supervision of examinations of private cars or light goods vehicles carried out under Part 9A of the RTO.

6.An RP is also tasked with ensuring that private cars and lights goods vehicles are “roadworthy”: see section 88B(1), Schedule 8, paragraph 2 of the RTO.  But his duties are more than that of an ACT.  They include (1) supervising ACTs with regard to the standards and procedures when conducting inspections, (2) ensuring Certificates of Roadworthiness (“CORs”) issued by the ACTs under his supervision contain necessary and correct information, and (3) conducting random checks of vehicles inspected by ACTs.

7.The Commissioner is entrusted with a series of “ancillary powers” under section 88F of the RTO, to ensure that standards do not drop as to who can be an ACT or RP, in light of the important role ACTs and RPs play in keeping the roads and streets safe:

(1)     section 88F(1)(a) allows the Commissioner to issue and from time to time revise a code of practice setting out the practice and procedure to be followed and specifying the equipment to be used for the examination of private cars and light goods vehicles at car testing centres – under which there is now a Code of Practice for Designated Car Testing Centres (“Code”) (which indeed sets out the job descriptions of ACTs and Responsible Persons);

(2)     section 88F(1)(c) and (d) allow the Commissioner to “conduct training courses” for the purpose of authorising persons to act as ACTs at CTCs; and

(3)     pursuant to paragraph 2.1 of the Code, every ACT and RP shall complete refresher courses and pass tests set by the Commissioner so that he can continually assess their suitability and ability to operate CTCs.

C.     Background

C.1    The Applicant’s Tests

8.I can take most of the material background facts from the matters as set out in the Initial Response, as supported by the various documents attached to the Initial Response, and the Applicant’s evidence.

9.The Applicant worked for and was employed by MD Motors CTC-HK Ltd (“MDL”), whose license to operate a designated CTC was suspended in 2024, after an ICAC investigation in June 2024.  Perhaps that is why a total of 13 RPs and ACTs (the Applicant included) were nominated to attend a refresher course on 2 August 2024.

10.Pursuant to paragraph 2.1 of the Code, every RP and ACT shall complete refresher courses and pass in the test annually in relation to CTC operation, as organised by the Transport Department (TD”), in order to renew the authorisation.

11.During the period from 2016 to 2023, the Applicant attended the refresher course(s) held by the TD, passed the test and renewed his license.  However, as stated, in 2024 the Applicant was nominated to attend another course and test.

12.The Applicant sat a test on the refresher course on 2 August 2024 (“1^st Test”), but failed.  The Applicant says that all 13 people participating in the test failed.  On 16 September 2024, he sat a re-test (“2^nd Test”), but also unfortunately failed.  The Applicant says that all 12 persons who took the test failed.  A second re-test (“3^rd Test”) was scheduled for 7 November 2024, but the Applicant was absent.  The Applicant says that those who did take the 3^rd Test all failed again.

13.By his application, the Applicant has raised questions as to what he regards as the unprecedented, and extremely unusual and illogical, requirement to participate in the refresher course directed at the staff of just one designated CTC, and that despite the syllabus remaining the same the experienced participants were all assessed as having failed their tests.

14.The Applicant was informed of his results of the 1^st Test and 2^nd Test (together, “Tests”) on 3 September 2024 and 22 October 2024 respectively.  On that latter date, the Applicant’s authorisation as RP expired.

C.2    The Applicant’s Enquiries

15.So, like many an aggrieved person who has failed a test, the Applicant wanted to know why he failed.

16.On 5 November 2024, the Applicant contacted the Putative Respondent by phone and made a request to appeal the test results.  He also requested to meet the Senior Motor Vehicle Examiner of the Car Testing Centre Monitoring Unit.

17.He also contacted 1823, the Government’s call centre, on (amongst other occasions) 10 and 11 November 2024, and alleged that the administration of the refresher course tests was biased because (amongst other things) the refresher course was only nominated for MDL employees, it was after the ICAC investigation in June 2024, and it was the first time that there had been a “collective” failure in the refresher test.

18.On 19 November 2024, the Commissioner provided a reply, which was then communicated to the Applicant by email on 29 November 2024.  In English translation, the email reads as follows:

1.     All responsible persons and vehicle testers must be nominated by car testing centres designated by the Transport Department before the Transport Department will arrange tests for them.  The test results mentioned in this enquiry had been notified to the relevant car testing centre on 22 October in this year.  If there is any query concerning the test results, the query should be made to the Transport Department through the car testing centre (my emphasis).

2.     The Transport Department would make corresponding test arrangement based on the operational conditions of the designated car testing centres.  There is marking scheme in place for all tests, and those who fall short of the benchmark will be graded as fail.

19.Unfortunately, the Applicant lost his status as an RP, as was notified to him on 12 December 2024.  No doubt this all led to the present judicial review commenced by Form 86 at the start of the year.

C.3    Subsequent Events

20.Perhaps because of the impending judicial review proceedings, the Commissioner reconsidered the matter and conducted a review of the Applicant’s Tests results.

21.On 28 March 2025, the Commissioner wrote to the Applicant informing him that:

(1)     A review of the Applicant’s test results had been completed, and he was still graded not to have passed the Tests.

(2)     If he had any queries, he could contact the Commissioner during office hours for making an appointment for inspection at the Commissioner’s office of (1) the question papers and answer sheets of the Tests, (2) the re-marked answer sheets of the two Tests after the review, and (3) the relevant marking schemes.

22.On the same day, the Commissioner invited the Applicant to withdraw his application for leave to apply for judicial review by 11 April 2025.  The Applicant did not drop his application.  However, he accepted the invitation to review the documents referred to above.  That indeed took place on 7 April 2025.

23.According to the Reply, however, the Applicant was not best pleased by how the Tests were marked.  He was also irked by how the Commissioner:

(1)     refused to provide duplicate copies of the Tests papers to him, even though the Applicant was willing to pay a fee, which is apparently contrary to the practice adopted by the Hong Kong Examinations and Assessment Authority;

(2)     allegedly wrongly refused to make alternative arrangements for him to re-take the 3^rd Test, even though he has evidence that he was physically sick on 7 November 2024 (the date of the 3^rd Test) and therefore could not take it;

(3)     organised inadequate refresher courses for all MDL employees as the ICAC, during its investigation, took away two sets of materials for revision, which included the “Tester’s Inspection Manual, 2000 Edition” and the “Tester’s Inspection Manual, 2019 Edition”.

D.     The Intended Challenge and Relief Sought

24.In his 1^st affirmation, the Applicant complains that the email dated 29 November 2024, which signified that the Commissioner’s stance that a query concerning the test results – or as the Applicant put it, “a request for a review of the test papers” – could only be made by the relevant CTC (here, MDL) but not him personally was “against natural justice”.

25.In both the Form 86 and his supporting affirmation, the Applicant stated that he sought an order of mandamus requesting the Transport Department to (1) disclose and review the Tests result of the refresher course in a fair, open and impartial manner; (2) clearly indicate the wrong answers and the parts that are erroneous and not up to standard; and (3) provide specific reasons for the fail.

E.     The Challenge is Academic

26.I reject the submission of Ms Kwong that the Applicant has not identified the decision under challenge, such that the judicial review is bound to fail.  

27.In my view, the decision under challenge is clear: namely, the decision as contained in the email dated 29 November 2024 from the Commissioner to the Applicant, stating that he would not entertain queries relating to the Tests – including booking an appointment for inspection of the question papers and the answer sheets of the Tests or divulging the marking schemes – unless the query was made through the relevant CTC.  Evidently, this decision restricted easy access to the results of the Tests because it imposed a condition for which there seems to be little justification. The present case is nothing like my decision in Ceesay Sambou Lamin v Director of Immigration [2022] HKCFI 523, where the applicant did not describe in his Form 86 or his affirmation the contours of the decision under challenge.

28.But I agree with Ms Kwong that the current challenge is or has become academic: Chit Fai Motors v Commissioner of Transport [2004] 1 HKC 465, §20.

29.I have set out above what relief the Applicant sought in his Form 86.  Irrespective of the merits of the intended grounds of review against the decision on 29 November 2024, the Applicant has effectively achieved what he wanted.  The Tests were reviewed again.  The Applicant has had access to the Tests papers and answer sheets, and the re-marked answer sheets after the review, as well as the relevant marking schemes for both tests concerned.  The errors in the Tests were pointed out and shown to him.  I do not think that the Commissioner’s remarking of the Tests papers can be said notto be fair, open, or impartial – particularly when the Applicant’s mistakes were pointed out to him.

30.Indeed, the Reply shows that the gravamen of the Applicant’s complaint has changed entirely.  He is no longer saying that he is shut out from reviewing or inspecting the Tests papers, or that his mistakes were not pointed out to him.  Rather, he is complaining about (at least) what he regards as the unreasonable marking of the Tests papers, the practice of the Commissioner not to allow aggrieved testers to make duplicate copies of the Tests papers, and the unreasonableness or inadequacy of the refresher courses organised by the Commissioner.

31.I make no comment on the complaints it seems the Applicant wishes to ventilate, as raised in the Reply (save to say that the Court exercising its judicial review powers is unlikely to be in the best position to assess the merits of the Tests results, or reasonableness of the Tests marking).  However, the Applicant cannot simply ‘tag’ these complaints onto those made in the Form 86 – that is improper.

F.     Result

32.In the circumstances, the Applicant’s application for leave to apply for judicial review is of no utility and has been rendered academic.  The application is dismissed.

33.However, in the circumstances, and in the exercise of my discretion, I make no order as to costs.

The applicant, acting in person

Ms Emily Kwong, Senior Government Counsel (Ag), and Ms Michelle Lee, Government Counsel, of the Department of Justice, acting for the putative respondent