LEGEND ENGINEERING (HONG KONG) COMPANY LTD v. DIRECTOR OF FIRE SERVICES

HCMP 848/2023

[2025] HKCFI 585

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 848 OF 2023

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BETWEEN

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JUDGMENT

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1.  The Appellant (“LEL”) was and is a registered fire service installation contractor in Class 1 and Class 2 (“Registered Contractor”) under the Fire Service (Installation Contractors) Regulations Cap. 95A (“Cap 95A”).

2.  Following an inquiry hearing before the disciplinary board (“the Board”) convened under Reg 10 of Cap 95A held on 3 and 4 May 2023, the Board found LEL guilty of all 4 charges (“the Ruling”) and, pursuant to its power under Reg 10(2) of Cap 95A, ordered that LEL be removed from the Register of Fire Service Installation Contractors in Class 1 and Class 2 (“the Register”) for a total period of 6 weeks (“the Temporary Removal Order”).

3.  Pursuant to Reg 12 of Cap 95A and by its Notice of Originating Motion dated 1 June 2023 and amended on 7 December 2023 (“the Amended Motion”), LEL appeals to the Court of First Instance against the Ruling and the Temporary Removal Order and asks the Court to reverse the Temporary Removal Order or any part thereof, or alternatively, to vary it to a reprimand or a shorter period of removal from the Register.

BACKGROUND

4.  This appeal concerns 2 annual inspections carried out by LEL in respect of certain fire service installations and equipment (“FSIE”) at locations in the University of Science and Technology (“UST”), namely

(1) the annual inspection on 24 June 2021 of the fire hydrant/hose reel (“the FH/HR”) systems, particularly the fixed fire pumps, at Undergraduate Hall IV (“respectively “Location 1” and “Subject Inspection 1”);

(2) the annual inspection on 28 July 2021 of the FH/HR systems, particularly the fixed fire pumps, at Staff Quarters Tower 3 (respectively “Location 2” and “Subject Inspection 2”);

(3) the annual inspection also on 28 July 2021 of the FH/HR systems, particularly the fixed fire pumps, at Staff Quarters Tower 10 (respectively “Location 3” and “Subject Inspection 3”); and

(4) the annual inspection also on 28 July 2021 of the supply tanks at Li Dak Sum Yip Yio Chin Kenneth Li Conference Lodge (respectively “Location 4” and “Subject Inspection 4”).

5.  It is common ground that the installation, repair, maintenance and inspection of FSIE are governed by the Fire Service (Installations and Equipment) Regulations Cap 95B (“Cap 95B”), which provide, relevant to this appeal :

(1) By Reg 8, that the owner of any FSIE which is installed in any premises shall, among others, keep such FSIE in efficient working order at all times, and have such FSIE inspected by a Registered Contractor at least once every 12 months;

(2) By Reg 9, that whenever a Registered Contractor installs, maintains, repairs or inspects any FSIE, he shall within 14 days issue a certificate and forward a copy to the Director of Fire Services (“the Director”); and

(3) By Reg 10, which is relied on by LEL, that

“10. Standard of inspection

(1) The Director may, by notice in the Gazette, prescribe a Code of Practice which shall govern the inspection and testing of fire service equipment.

(2) Any fire service installation or equipment shall be deemed to be in efficient working order if it complies with the requirements specified by the Director in the Code of Practice prescribed under paragraph (1).

(3) The Code of Practice prescribed under paragraph (1) shall—

(a) be published in the Gazette at least once in every year; and

(b) be made available for inspection by any person at all reasonable times free of charge at the offices of the Fire Services Department and at each fire station in Hong Kong.”

6.  By Circular Letter No. 4/2019 dated 13 December 2019 (“CL4/2019”), the Director announced the introduction of the annual inspection checklists enclosed therewith (“the Checklists”), to take effect on 1 April 2020, to facilitate annual inspection of FH/HR systems and supply tanks by Registered Contractors. The Chinese version of the Checklists was introduced by Circular Letter No. 2/2020 dated 18 February 2020 (“CL2/2020”).

7.  In CL4/2019, the Director expressly stated that :

“[Registered Contractors] should conduct [annual inspection] of FH/HR systems and supply tanks against the respective checklists. …

… [Registered Contractors] are required to produce the completed checklists for [annual inspection] for verification by the FSD upon request, which may carry out on-site FSI tests from time to time to ensure the fire safety of a building. Through verification of the completed checklists which could comprehensively reflect the status of different parts of an FSI, the FSD will be in a position to confirm whether such FSI has conformed to the [annual inspection] requirements to the satisfaction of the Director. The Director is therefore of the view that failure to produce the checklists upon request is considered as "improper conduct or negligence" on the part of an [Registered Contractor] in the maintenance, repair or inspection of FSIs, rendering the [Registered Contractor] concerned unfit to be on the register.”

8.  After LEL having conducted Subject Inspections 1 to 4 at Locations 1 to 4, it issued the following 4 certificates under Reg 9(1) of Cap 95B:

(1) In relation to Subject Inspection 1, a certificate dated 24 June 2021 certifying that the FH/HR systems at Location 1 “have been tested and found to be in efficient working order in accordance with the Code of Practice for Minimum Fire Service Installation and Equipment and Inspection, Testing and Maintenance of Installations and Equipment published from time to time by the Director of Fire Services. Defects are listed in Part 1” (“the Efficient Working Order Certification”) and in Part 1 thereof LEL commented that the FH/HR systems were “In Good Conditions”;

(2) In relation to Subject Inspections 2 and 3 respectively, 2 certificates both dated 28 July 2021 giving the Efficient Working Order Certification in respect of the FH/HR systems at Locations 2 and 3 and giving them the same comment of “In Good Conditions” (save that 2 minor defects irrelevant to this appeal were listed in the certificate relating to Location 2);

(3) In relation to Subject Inspection 4, a certificate dated 28 July 2021 giving the Efficient Working Order Certification in respect of the FH/HR systems and sprinkler system at Location 4 and giving them same comment of “In Good Conditions”

9.  On 11 January 2022, a functional test was carried out by a Senior Station Officer of the Fire Services Department in respect of the FSIE in UST (“the Functional Test”). It was found that

(1) at Locations 1, 2 and 3, the fixed fire pumps of the FH/HR systems, being systems equipped with duplicate fixed fire pumps, when assigned as the standby pumps, were not energized upon the failure of another fixed fire pump which was assigned as the duty pump; and

(2) at Location 4, when the water level of the supply tank of the FH/HR system was not maintained at more than 90% of the required storage capacity, the low level alarm signals of the supply tank on the fire services pump control panel were not activated, but the low level alarm signals of the supply tank on the sprinkler system’s control panel were activated; conversely, when the water level of the supply tank of the sprinkler system was not maintained at the required level, the low level alarm signals were not displayed on the corresponding control panel of the sprinkler system, but were displayed on the fire services pump control panel.

10.  Pursuant to the said findings in the Functional Test, the Director brought 4 charges against LEL to the Board under Reg 10(1)(b) of Cap 95A, alleging improper conduct or negligence on the part of LEL:

(1) Charge 1, Charge 2 and Charge 3 alleged that respectively during Subject Inspection 1, Subject Inspection 2 and Subject Inspection 3, LEL “failed to ensure that the fixed fire pump of the Fire Hydrant/Hose Reel System, being a system equipped with duplicate fixed fire pumps, when assigned as the standby pump, shall be energized within 15 seconds upon mechanical failure of another fixed fire pump which is assigned as the duty pump” (respectively, “Charge 1”, “Charge 2”, “Charge 3” and “the Standby Pump Energization Requirement”,); and

(2) Charge 4 alleged that during Subject Inspection 4, LEL “failed to ensure that when the water level of the supply tank cannot be maintained at more than 90% of the required storage capacity, the low level alarm at the F.S. pump control panel and/or the F.S. control and indicating panel shall be activated” (respectively, “the Low Water Level Alarm Requirement”, “the Low Water Level Alarm Failure” and “Charge 4”).

11.  As have said, the Board found LEL guilty of all 4 Charges and made the Temporary Removal Order.

LEGAL PRINCIPLES

12.  Under Reg 12 of Cap 95A, in an appeal by a Registered Contractor who is aggrieved by an order made in respect of him by the Board under Reg 10(2), the Court of First Instance may confirm, reverse or vary the order of the Board, and may exercise any power which the Board might have exercised.

13.  It is common ground that O.55 of the Rules of the High Court governs this appeal.

14.  Under O.55 r.3(1), this appeal is conducted by way of a rehearing. Though a re-hearing, it is not conducted in complete disregard of the proceedings before the tribunal or the board or its decision. Generally speaking, the Court dealing with an appeal will neither hear the evidence once again nor allow the appellant to cross-examine the witnesses again. The Court dealing with an appeal must give proper weight to the decision of the tribunal. An appellant must be able to point out that the tribunal or the board has erred on a point of law, departed from an applicable principle, misapprehended the facts, taken into account irrelevant matters or exercised its discretion without any reasonable basis whatsoever before the Court would intervene (WKP v Chiu Chung Yee Charles [2018] 3 HKLRD 232 at §21; and Hong Kong Civil Procedure 2024 §55/3/1).

15.  Mr Chik, counsel for the Director, emphasized, and not disputed by Mr Chan SC (leading Mr Wong), that (a) the Court should be diffident about interfering with a disciplinary body’s assessment of matters calling for professional judgment and expertise, particularly where professional misconduct is alleged in connection with technical or clinical judgments or competence (Sin Chung Yin Ronald v Dental Council of Hong Kong (2016) 19 HKCFAR 528 at p.548 §49), and (b) the threshold for challenging the finding of a professional tribunal is high (Dr Fung Yee Leung Wilson v The Medical Council of Hong Kong CACV 35/2017, unrep., 11 July 2018 per Cheung CJHC (as he then was) at §18).

16.  In the context of Cap 95A, “improper” means not acceptable or right for someone or something and “negligent” means having a duty of care but breached it and fell below the standard of a reasonable Registered Contractor in the trade; and both are assessed by an objective standard (Rich Engineering Ltd v Fire Services Installation Contractors Disciplinary Board [2024] HKCFI 648 at §79 per Q Au-Yeung J).

THE GROUNDS OF APPEAL

17.  In the Amended Motion, LEL raised 4 grounds of appeal, in gist, that

(1) The Board erred in finding LEL guilty of all 4 Charges by erroneously taking into account requirements or standards that have not been published in the applicable Codes of Practice (“Ground 1”);

(2) The Board erred in finding LEL guilty of Charge 4 by erroneously taking into account the Low Water Level Alarm Failure as found during the Functional Test (“Ground 2”);

(3) The Board failed to give adequate reasons for finding LEL guilty of all 4 Charges (“Ground 3”); and

(4) The removal of LEL from the Register for a total period of 6 weeks is excessive and/or incommensurate with the gravity of the improper conduct or negligence found by the Board (“Ground 4”).

DISCUSSION

Ground 1 for Charge 4

18.  It is convenient to first deal with Ground 1 in respect of Charge 4.

19.  LEL’s key contention is that at the material time, there was no Code of Practice prescribed under Reg 10 of Cap 95B (“CoP”) setting out the Low Water Level Alarm Requirement. This is accepted by the Director and is common ground.

20.  It is also common ground that

(1) the Low Water Level Alarm Requirement was only introduced in the Annual Inspection Checklist for Supply Tanks enclosed with CL4/2019 (for Chinese Version, enclosed with CL2/2020), by §3(e) thereof :

“3. Stored Water

…

e. When the water level(s) cannot be maintained at more than 90% of the required storage capacity, the low level alarm(s), where provided, at the pump control panel and/or the F.S. control and indicating panel as appropriate, activate(s)”;

(2) in completing the Annual Inspection Checklist for Supply Tanks for Subject Inspection 4, LEL ticked “N/A” against §3(e) instead of “Yes” or “No”.

21.  The Director’s case before the Board was that therefore LEL had failed to inspect whether the Low Water level Alarm Requirement was satisfied but issued the certificate dated 28 July 2021 giving the Efficient Working Order Certification.

22.  Mr Chan submitted that the circular letters issued by the Director do not have the force of a gazetted CoP under Reg 10 of 95B, which therefore could not introduce additional requirements that were not found in the CoP for the purpose of Reg 10 of Cap 95A and Reg 10 of Cap 95B.

23.  Mr Chan further pointed out that it was the evidence of a witness for the Director before the Board that if there was a requirement in the Checklist which was not required under the relevant CoP, it was appropriate for LEL to tick “N/A” against that item in the Checklist.

24.  Mr Chik for the Director submitted that the circular letters have been published in the public website of the Fire Services Department, and therefore could have been easily assessed, and they have all along been an effective and widely used tool by the Director to establish consistent standards for Registered Contractors, and they served as the authoritative guide for their professional conduct and operations. He therefore submitted that though the Low Water Level Alarm Requirement was then not made a requirement under the relevant CoP, CL4/2019 made it clear that the Checklists were to be completed to ensure fire safety of a building.

25.  Mr Chan did not dispute, and on my part I have no hesitation in accepting, that the circular letters have been and may continue to be an effective and useful tool for the Director in effectively performing his duty in the manner described by Mr Chik. And probably the circular letters are useful in more manners, as it would not be difficult to envisage, for instance, that there would be certain other detail and practical matters over and above what could be set out in the CoPs which could be promulgated and supplemented by the use of circular letters.

26.  That said, however in my view, as a matter of law, and as submitted by Mr Chan, the standard of inspection is prescribed by Reg 10 of Cap 95B, namely, that the gazetted CoP “shall govern the inspection and testing of fire service equipment” (my emphasis). In my view therefore, new requirements concerning FSIE could only be introduced by a gazetted CoP under Reg 10 of Cap 95B; and the circular letters issued by the Director, in this regard, cannot take the place of such a gazetted CoP.

27.  In light of my above conclusion and the undisputed evidence before the Board that it was appropriate to tick “N/A” against an item in the Checklist where the requirement was not contained in an applicable CoP, I hold that the Board erred in effectively treating the Low Water Level Alarm Requirement as if it were a requirement promulgated under a CoP and consequentially finding that LEL’s failure to inspect and ensure it was in working order during Subject Inspection 4 was improper conduct or negligence under Reg 10 of Cap 95A. I thus find Ground 1 against Charge 4 made out.

28.  Incidentally, I was informed by the parties that the matter has since been expressly provided in the Code of Practice for Inspection, Testing and Maintenance of Installations and Equipment issued in September 2022, in that by §1.14(2) thereof, all inspections shall be conducted according to circulars and checklists promulgated from time to time by the Director.

Ground 2

29.  As Ground 2 relates solely to Charge 4 and I have already held that Ground 1 in respect of Charge 4 is made out, it is not necessary for me, and I do not propose, to deal with Ground 2.

Ground 1 for Charges 1 to 3

30.  It will be recalled that Charges 1 to 3 all relate to LEL’s failure to ensure that the Standby Pump Energization Requirement was met during Subject Inspections 1 to 3 at respective Locations 1 to 3. I will deal with them together as LEL relies on the same contention, namely, that the requirement LEL termed as “Mechanical Failure Inspection Requirement”, which LEL said was the backbone supporting Charges 1 to 3, was not in the applicable CoPs.

31.  I will first set out the relevant parts of the applicable CoPs and of the Checklist.

32.  It is not disputed that for Charges 1 and 2, the applicable CoP was the Code of Practice for Minimum Fire Service Installations and Equipment issued in March 1987 (“the 1987 CoP”), and for Charge 3, the applicable CoPs were the Code of Practice for Minimum Fire Service Installations and Equipment issued in March 1994 (“the 1994 CoP for FSIE”) and the Code of Practice for Inspection and Testing of Installation and Equipment also issued in March 1994 (so far as the parties’ case before me are concerned, nothing turns on this latter CoP).

33.  The relevant part of the 1987 CoP reads :

“5.15 Fire hydrant/hose reel installation Systems

(i) SPECIFICATION

…

(d) FIRE PUMPS

Fire pumps shall be permanently primed and duplicated for duty and standby use.

The pump should preferably be electrically driven but, whatever mode of power for driving the pump is employed, means shall be provided for starting the pump by electric remote control button. Where the motive power for any pump is not electricity, alternative means of starting the pump motor manually, in addition to remote control buttons, shall be provided and directions for so starting prominently displayed in the pump house. Remote starting points shall be wired for starting the pump and operating the manual alarm system. There shall be no means of stopping the pump, other than by switches of the press button type, which re-set the remote control starts switches.

The fire pump starters shall be wired through a selector switch for duty and standby pump selection. Should the duty pump fail to operate within 15 seconds the standby pump shall be energized to become the duty pump. …

(my emphasis in bold and underline)

34.  The relevant part of the 1994 CoP for FSIE reads:

“5.14 Fire hydrant/hose reel systems

(i) SPECIFICATION

…

(d) FIXED FIRE PUMP

The fixed fire pump shall preferably be electrically driven. Where the motive power for the pump is not electricity, alternative means for starting the pump manually in addition to manual fire alarm call points, shall be provided adjacent to the pump together with starting instructions prominently displayed. Once started, the pump must run continuously until stopped manually at the pump control panel installed near the pump. In addition, a lock-off button may be installed adjacent to this fire pump.

The fixed fire pumps shall be capable to provide adequate flow …

The pressure at any fire hydrant outlet shall in no case exceed …

The fixed fire pump shall be duplicated for duty and standby use. The fire pump starting control shall be wired through a selector switch for duty and standby pump selection. Should the duty pump fail to operate within 15 seconds the standby pump shall be energized to become the duty pump. …”

(also my emphasis in bold and underline)

35.  The contents of the relevant items in the Annual Inspection Checklists for Subject Inspections 1 to 3 and the results of LEL’s Subject Inspections 1 to 3 stated therein are identical, namely:

“消防栓/喉轆系統年檢核對表

3.2 固定消防泵

w. 若是備有主備两個固定消防泵的系統，當其中編配作主泵啲2號固定消防泵發生電力故障時，編配作為後備泵的1號固定消防泵會在15秒內啟動。 [是]

x. 同上，帷2號固定消防泵編配作後備泵，1號固定消防泵則編配作主泵(如適用) 。 [是]

y. 若是備有主被兩個固定消防泵的系統，當其中編配作主泵的2號固定消防泵發生機械故障時，編配作後備泵的1號固定消防泵會在15秒內啟動。 [不適用]

z. 同上，帷2號固定消防泵編配作後備泵，1號固定消防泵則編配作主泵(如適用) 。[不適用]”

(my emphasis)

36.  The Director’s case before the Board, in a nutshell, was that LEL has failed to ensure that the Standby Pump Energization Requirement was met at Locations 1 to 3 as LEL had not checked and ensured that the standby pumps would so energize when there was a mechanical failure of the assigned duty pumps, yet LEL issued the relevant certificates giving the Efficient Working Order Certification, and the failure was discovered during the Function Test.

37.  LEL now argues that the Board had erred in finding LEL guilty of Charges 1 to 3. Its argument runs thus:

(1) LEL terms the inspection under Checklist item 3.2(y) above as “Mechanical Failure Inspection Requirement”.

(2) The fixed fire pumps at Locations 1 to 3 were all electricity driven pumps, which is common ground.

(3) Both §5.15(i)(d) of the 1987 CoP and §5.14(i)(d) of the 1994 CoP for FSIE “merely state”[1] that “Should the duty pump fail to operate within 15 seconds the standby pump shall be energized to become the duty pump”.

(4) Mr Chan submits that “on its proper interpretation, where a fixed pump is electrically driven, the above requirement only demands the testing of electrical, but not mechanical, failure during an annual inspection”[2].

(5) And as the applicable CoPs so interpreted did not have the Mechanical Failure Inspection Requirement, it was prudent and appropriate to tick [不適用] in the respective Checklists for Subject Inspections 1 to 3.

(6) The Board thus erred in finding LEL guilty of Charges 1 to 3.

38.  Mr Chan then argues that his proposed interpretation is correct because :

(1) Later versions of CoPs (namely, those issued respectively in June 1998, July 2005 and April 2012) in §5.14(i)(d) added the words “electrically or mechanically” to the sentence which therefore reads “Should the duty pump electrically or mechanically fail to operate within 15 seconds the standby pump shall be energized to become the duty pump”.

(2) There were references to “electrically driven” in §5.15(i)(d) of the 1987 CoP and §5.14(i)(d) of the 1994 CoP for FSIE, which tend to support his interpretation.

(3) He refers to the items of inspection in the Checklist in respect of intermediate booster pumps which itemized for inspection solely electrical failure, but not mechanical failure.

39.  With respect, I have no difficulty in rejecting, and must reject firmly, the interpretation put forth by LEL and its contentions, for the following reasons.

40.  First, as LEL itself submits in relation to Charge 4, which I accepted in §26 above, the circular letters themselves (a fortiori, the checklists enclosed) cannot add new requirements of the FSIE for the purposes of Reg 10 of Cap 95A and Reg 10 of 95B. Yet, contrary to that LEL is now building its submission on the premise that Checklist item 3.2(y) amounted to an independent “Mechanical Failure Inspection Requirement”.

41.  For the specific matter before me, I do not accept that approach as correct as it is twisting the objective and use of the Checklist.

42.  The Director in CL4/2019 clearly explained that “Through verification of the completed checklists which could comprehensively reflect the status of different parts of an FSI, the FSD will be in a position to confirm whether such FSI has conformed to the [annual inspection] requirements to the satisfaction of the Director” (my emphasis). In other words, the checklists seek to break down the requirements in appropriate components or parts item by item for individual inspection and confirmation by a Registered Contractor so that the status of each of those particular FSIE can thereby be comprehensively and effectively reflected, which at the same time and thereby, would enable the Director to confirm whether any particular requirement is in fact met.

43.  I therefore do not accept that there was an independent “Mechanical Failure Inspection Requirement”. So understood the purpose of the Checklists as aforesaid and looking at items 3.2(w), 3.2(x), 3.2(y) and 3.2(z) thereof, and reading them plainly and fairly, they are but break-down checklist items, which together would ensure and confirm that the Standby Pump Energization Requirement would be met.

44.  Second, and with respect, I firmly reject Mr Chan’s interpretation that under §5.15(i)(d) of the 1987 CoP and §5.14(i)(d) of the 1994 CoP for FSIE, a Registered Contractor is required to ensure that the Standby Pump Energization Requirement is met only upon the electrical failure of the duty pump, and the Standby Pump Energization Requirement is not required to be met upon the mechanical failure of the duty pump.

(1) Reading §5.15(i)(d) of the 1987 CoP and §5.14(i)(d) of the 1994 CoP for FSIE plainly and fairly, one of key requirements is the Standby Pump Energization Requirement, such that the standby pump would kick-in to operate as the duty pump to help supply water to put out fire. If the standby pump so fails to kick-in and operate as the duty pump, the whole purpose of having the standby pump system installed and maintained is defeated.

(2) That being the objective, the Standby Pump Energization Requirement clearly requires that the standby pump would actually so kick-in and operate as the duty pump upon the failure of the assigned duty pump, regardless of in what particular way the assigned duty pump fails.

(3) Evidently, even for pump systems that are driven by electric motors, there are mechanical parts or components in those pump systems to make them work; and if the mechanical parts or components fail, even if the electrical parts do, the pump still will not work.

(4) Interpreting the Standby Pump Energization Requirement so narrowly, as LEL is trying to here, completely defies common and practical sense.

(5) The language used in §5.15(i)(d) of the 1987 CoP and §5.14(i)(d) of the 1994 CoP for FSIE to describe the Standby Pump Energization Requirement clearly do not make any mention that it was only when there was an electrical failure of an electricity motor driven duty pump that the standby pump would be required to kick-in.

(6) Reading §5.15(i)(d) of the 1987 CoP and §5.14(i)(d) of the 1994 CoP for FSIE plainly and fairly, the references to the pump being “electrically driven” do not at all detract from the Standby Pump Energization Requirement, as explained above. Such references merely serve the purpose of adding additional requirements for non-electrically driven pumps, such as that those pumps are additionally required to have the alternative means to start manually and the instructions for so starting have to be displayed prominently and so on.

(7) The adding of the words “electrically or mechanically” to describe the failure of the duty pump in subsequent editions of CoPs, in my view, is an improvement to the CoP, and has no bearing on the interpretation of the Standby Pump Energization Requirement in §5.15(i)(d) of in the1987 CoP and §5.14(i)(d) of the 1994 CoP for FSIE.

45.  In the premises, Ground 1 in respect of Charges 1 to 3 is wholly unmeritorious and I reject it.

Ground 3

46.  Ground 3 complains that the Board has failed to give adequate reasons for its Ruling.

47.  The principles regarding the giving of reasons are trite and not disputed.

48.  Where the statute or regulation provides a right to appeal from a decision (as here, Reg 12 of Cap 95A), reasons will most likely be required so as to enable the affected individual to exercise effectively that right (Rich Engineering Limited v Fire Services Installation Contracts Disciplinary Board [2024] HKCFI 648, Q Au-Yeung J, at §70).

49.  As to the adequacy of the reasons, (a) 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, (b) 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, (c) 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, and (d) ultimately, what are adequate reasons in the circumstances of a particular case has to be approached sensibly (Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority (1997-1998) 1 HKCFAR 279, §§42 and 44, CJ Li)

50.  Mr Chik places emphasis on the observation by Stock JA (as he then was) in Capital Rich Development Ltd v Town Planning Board [2007] 2 HKLRD 155 at §98, not disputed by Mr Chan, that “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. … Reasoning must be examined with reality and contextual common sense.”.

51.  LEL complains that the Board failed to give adequate reasons regarding the following 3 submissions made on behalf of LEL before the Board:

(1) “Neither the 1987 CoP nor [the 1994 CoP for FSIE] require testing of mechanical failure and therefore were inapplicable” (“Submission 1”);

(2) “The ticking of the “N/A” boxes on the relevant checklists does not mean that the relevant tests were not performed” (“Submission 2”); and

(3) There was evidence from PW3, a staff of UST Campus Management Office, that the FSIE had been “tampered with” after the Subject Inspections were performed by LEL and before the Functional Test. The “tempering” apparently consisted of the fact that a faucet in Location 2 had been changed by another contractor (“Submission 3”).

52.  As provided by Reg 9(2) of Cap 95A, the Board consisted of 6 members, namely, (a) a member of the committee of the Fire Insurance Association of Hong Kong nominated by that Association, (b) a public officer nominated by the Building Authority, (c) a public officer nominated by the Water Authority, (d) a registered contractor nominated by the Director, (e) the Director or his representative; and (f) a legal adviser appointed by the Director.

53.  After an adjournment and in the afternoon of the second day of the hearing, the Board delivered the Ruling and their succinct reasons[3].

54.  Regarding Submission 1, the Board (a) referred to the Standby Pump Energization Requirement, (b) referred to the relevant part of §5.15(i)(d) of the 1987 CoP and §5.14(i)(d) of the 1994 CoP for FSIE, (c) clearly stated that the requirement was that the standby pump had to be energized to operate as the duty pump within 15 seconds after the duty pump failed to function, (d) referred to the fact that the Standby Pump Energization Requirement at the 3 Locations was found to be not met during the Function Test, (e) referred to the explanation given by LEL that the Standby Pump Energization Requirement was not applicable to the FSIE in the 3 Locations (without details as LEL did not call any witness to give evidence as to why that was so), (f) stated that the Board has considered all the evidence and submissions, (g) came to the finding that LEL has only completed part of the annual inspection as it did not ensure that the standby pump would operate as the duty pump upon a mechanical failure of the assigned duty pump as LEL only indicated in the Checklists that item 3.2(y) was “not applicable”. The Board then ruled that LEL was guilty of Charges 1 to 3.

55.  I would also note that the contention on Submission 1 was hardly developed before the Board by counsel then representing LEL. As I have said above, LEL’s such narrow interpretation of the Standby Pump Energization Requirement is not at all supported by the language in the relevant CoPs, defies common and practical sense and defeats the objective of that requirement, while its contended “Mechanical Failure Inspection Requirement” has no basis at all and is twisting the good purpose of the Checklist. I would not be surprised if the members of the Board, who are professionals, find Submission 1 rather nonsensical and readily dismiss it without much need for giving reasons. It is only in the context of an appeal and in deference to counsel’s submissions that this Court finds it necessary to give some detail reasons in rejecting that which is plainly unmeritorious and untenable. Examining LEL’s present complaint of inadequate reasons being given with reality and contextual common sense, I would think that in the aforesaid context, not much more need to be said by the Board and I would not fault the Board for not having given adequate reasons in not accepting Submission 1, as complained.

56.  Submission 2 has no substance and is even more untenable. Counsel for LEL argued before the Board, essentially based on burden of proof, that the Director has not proffered evidence that that no test was performed by LEL, and against that context made Submission 2. As explained by the Director in CL4/2019, one of the purposes of the checklists is to ensure that the inspections were done and done properly and comprehensively to ensure that the requirements of FSIE were met. Filling in “not applicable” against an item in the checklist clearly meant, prima facie, that the particular item for inspection was not relevant and need not be, and was not, performed. LEL did not call evidence to state otherwise or that it had performed the test over that particular item. Moreover, it was LEL’s principal position, ventilated in cross-examination, that “N/A” was appropriate for a requirement not set out in the CoP. Against all these, Submission 2 was clearly untenable and was so unmeritorious that only needed to be stated to be dismissed, and for rejecting which, in my view, the Board did not need to give any further reason. Moreover, I would also think that it did not qualify as an issue that has arisen before the Board for serious consideration. I would not fault the Board for not giving specific reasons in rejecting Submission 2.

57.  Submission 3 was stated in one sentence in LEL’s written submissions before the Board and was not pursued in LEL’s oral submissions before the Board. As I understand it, Submission 3 was made in connection with one of LEL’s contentions that it was not proved that the standby pump did not work at the time of the Subject Inspections, as its subsequent failure during the Functional Test might have been caused by such “tempering”. However, the gravamen of Charges 1 to 3 is that LEL have failed to perform the Subject Inspections properly and with care, by not having inspected and checked during the Subject Inspections whether the respective standby pumps would operate as the duty pump in case of a mechanical failure of the respective assigned duty pumps, and yet certified them. Submission 3 therefore was neither here nor there. I do not regard it as an issue that has arisen before the Board for serious consideration in the context of Charges 1 to 3.

58.  I thus reject Ground 3 in its entirety.

Ground 4

59.  By the Temporary Removal Order, the Board ordered LEL to be so removed for 6 weeks in respect of each of Charges 1 to 4, but the periods of removal were ordered to run concurrently to each other, with the result that LEL be removed from the Register for a total of 6 weeks.

60.  Ground 4 complains that the Temporary Removal Order was an excessive and heavy penalty. I understand that as the Checklists was introduced to take effect on 1 April 2020, there was no precedent in respect of penalties previously imposed for similar situations.

61.  At the hearing, Mr Chan also focused the complaint on there being no reason given by the Board in imposing such a heavy penalty.

62.  The fact that the Board has not given any reasons for the Temporary Removal Order is common ground. On the other hand, it is not disputed that the Board has given counsel for LEL an opportunity to address the Board on the penalty to be imposed, and that it has heard submissions on mitigation made by him, including a submission that a reprimand might be an appropriate sentence.

63.  On the complaint that the Board has not given reasons for the penalty, I have invited parties to each lodge a short supplemental submission.

64.  On the requirement to give reasons specifically on the question of penalty, Mr Chan cited two medical disciplinary cases in the UK, namely Selvanathan v General Medical Council (2000) 59 BMLR 95 at p.103 and Gupta v General Medical Council [2002] 1 WLR 1691 at §6. Both of these cases were decisions of the Privy Council, and thus are of high persuasive authority. Moreover, in Rich Engineering Ltd (supra) Q Au-Yeung J remitted 6 cases, of which the convictions were upheld on appeal before her Ladyship, to the same Board to reconsider the sentence and to give reasons for the sentence. On those authorities, I accept that a disciplinary tribunal has a duty to give adequate reasons on the penalty it imposes.

65.  Mr Chik submitted that, even though no reasons have been given, it nevertheless requires a very strong case before the Court would interfere with a penalty or sentence imposed (Dr Kwan Chee Keung v Medical Council of Hong Kong [1999] 2 HKLRD 217 at 221A-C) and that the Court should remain cautious in respect of sentences imposed by a professional body (Sin Chung Yin Ronald v Dental Council (2016) 19 HKCFAR 528 at §48). Mr Chik submitted that though reasons were not given, it does not necessarily mean that the penalty imposed is plainly wrong or there is a strong cause warranting interference by the Court.

66.  In the round, I am persuaded that there were at least the following 2 potentially substantial mitigation factors that the Board ought to have seriously considered and to have given its reasons concerning them and its reasons for preferring a temporary removal (and if so, the reason for the period) over a reprimand as the appropriate sentence. The 2 factors are (a) that at the time of the Subject Inspections (June and July 2021), the Checklists for annual inspection were newly introduced by CL4/2019 (English version) and CL2/2020 (corresponding Chinese version) to take effect on 1 April 2020, (b) that LEL has a clear record. While this Court gives deference to the decision on penalty reached by the Board, but temporary removal from the Register is a heavy penalty that has significant consequences to LEL, and without the benefit of the reasons, I accept LEL’s submission that it is prejudiced. Moreover, in light of my understanding that there was no precedent concerning the penalty to be imposed against a Registered Contactor who has failed to conduct the inspection according to the Checklist so introduced, by giving adequate reasons the Board could make it known to the trade the Board’s consideration in imposing what measure of penalty, which thereby would benefit the trade and thus public interest at large.

67.  Accordingly, I conclude that Charges 1 to 3 should be remitted to the same Board to reconsider the penalty and to give adequate reasons for the penalty imposed after reconsideration.

CONCLUSION AND DISPOSAL

68.  By reasons expressed above, I confirm the Ruling in respect of Charges 1 to 3, but quash the Ruling in respect of Charge 4. I remit Charges 1 to 3 to the same Board to reconsider the penalty and to give reasons therefor as aforesaid. The appeal is accordingly partly dismissed and partly allowed.

69.  It seems to me that LEL and the Director each wins some and loses some in this appeal, and presently, I think is broadly to an equal extent, such that the appropriate costs order is no order as to costs. I so order on nisi basis to be made absolute within 14 days unless any party applies to vary by summons within that time.

70.  Lastly, I thank Mr Chan, Mr Chik and Mr Wong for their assistance.