RICH ENGINEERING LTD v. FIRE SERVICE INSTALLATION CONTRACTORS DISCIPLINARY BOARD

HCMP 803/2024

[2026] HKCFI 35

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLEANOUS PROCEEDINGS NO 803 OF 2024

(on appeal from Fire Service Installation Contractors Disciplinary Board)

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J U D G M E N T

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I.  INTRODUCTION

1.  This is an appeal by Notice of Originating Motion filed on 16 May 2024 by Rich Engineering Limited (“REL”), the Appellant, against the Fire Service Installation Contractors Disciplinary Board (“Board”), in respect of the sentences made by the Board on 16 April 2024. The appeal is lodged pursuant to Regulation 12 of the Fire Service (Installation Contracts) Regulations (Cap 95A) (“Regulations”) and under Order 55 rule 3 of the Rules of the High Court (Cap 4A).

II.  BACKGROUND

2.  The background of the present appeal can be found in Au-Yeung J’s judgment handed down on 1 March 2024 in HCMP 2378/2020 ([2024] HKCFI 648; [2024] 2 HKLRD 531) (the “HCMP 2378/2020 Judgment”). Suffice for the present purpose to set out the following from that judgment as a matter of background:-

(1)  REL 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 Board is a statutory body appointed by the Chief Executive under Regulation 9(1) of the Regulations to inquire into and deal with any matters referred to it under Regulation 10(1).

(3)  In October and November 2020, the Director of Fire Services (the “Director”) referred 12 cases to the Board for an inquiry hearing (the “Inquiry Hearing”) to take place on 1 December 2020. At the end of the Inquiry Hearing, REL was convicted and sentenced in those cases.

(4)  REL, by Notice of Originating Motion in HCMP 2378/2020, appealed. By the 2378/2020 Judgment, Au-Yeung J allowed appeal to a limited extent.

3.  The extent of the appeal allowed covered the sentences in FSICDB20-20, 21, 22, 24, 25, 27, which are the subject matter of the present appeal before me. It is necessary to understand the reason for her Ladyship to allow the appeal in the sentences so as to understand what the allowed appeal covered. At §116 of the HCMP 2378/2020 Judgment, her Ladyship said:-

“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.” (emphasis added)

4.  Her Ladyship therefore ordered that these 6 cases be “remitted to the same Board to [1] reconsider the sentence and [2] give reasons for the sentences” (§118).

5.  It is not in dispute that the Board was functus and could not impose fresh sentences, and therefore, the 6 cases were remitted for giving reasons and reconsideration because the convictions in some other cases for which concurrent sentences were imposed were set aside in HCMP 2378/2020 Judgment, a matter which the Board would have to bear in mind in giving reasons. Her Ladyship’s Order made on 4 March 2024 (the “4 March Order”) well reflects this.

6.  On 16 April 2024, the Board gave written reasons in respect of the sentences in the 6 cases (the “Board’s Reasons”). Given the nature of the complaint now raised by REL in the present appeal (as shall be seen below), it is necessary to set out the Board’s Reasons in full:-

“1. 根據原訟法庭於Rich Engineering Limited (富裕工程有限公司) v Fire Service Installation Contractors Disciplinary Board & Director of Fire Services (HCMP 2378/2020 [2024] HKCFI 648)... 註冊消防裝置承辦商紀律委員會2020/2021 (“紀律委員會”)，需要就原訟法庭維持了紀律委員會針對第1 級及第2 級註冊消防裝置承辦商富裕工程有限公司的命令提供理由。

2. 紀律委員會於2020 年12 月1 日按該規例第10 條進行適當的研訊後，信納第1 級及第2 級註冊消防裝置承辦商富裕工程有限公司，曾犯了下列有關裝置、保養、修理或檢查消防裝置或設備的不當行為或疏忽，即其：

(i) 在2020 年6 月2 日，沒有把香港灣仔駱克道288-290 號曾氏大廈新安裝而尚未啟用的消防裝置及設備，即消防栓／喉轆系統及火警警報系統或其組件貼上藍色標記，並張貼適當通告，方便識別 [FSICDB20-20] ;

(ii) 在2019 年11 月15 日或之前，沒有通知消防處，有關位於香港灣仔駱克道288-290 號曾氏大廈的消防裝置，即消防栓／喉轆系統及火警警報系統，因保養、改進或修理，而預計須通宵或持續超過24 小時關閉的事宜[FSICDB 20-21] ;

(iii) 在2020 年2 月26 日之前，沒有就香港灣仔駱克道288-290 號曾氏大廈的消防裝置因工程而須繼續關閉，向消防處處長發出新的 “樓宇消防裝置因工程而關閉通知書” [FSICDB20-22] ;

(iv) 在2017 年12 月至2020 年5 月，獲指示承擔裝置香港上環普慶坊2-8 號寶慶大廈地下C 號舖的花灑系統、手控火警警報系統及消防栓／喉轆系統後，就裝置工程的進度，向作出指示的人提供虛假或誤導的資料[FSICDB20-24] ;

(v) 在2018 年12 月至2020 年5 月，獲指示承擔裝置香港上環普慶坊2-8 號寶慶大廈地下B 號舖的花灑系統、手控火警警報系統及消防栓／喉轆系統後，未有在合理時間內完成裝置該等消防裝置或設備 [FSICDB20-25] ;及

(vi) 在2020 年3 月20 日，沒有把香港上環普慶坊2-8 號寶慶大廈地下B 號舖新安裝而尚未啟用的消防裝置及設備，即花灑系統或其組件貼上藍色標記，並張貼適當通告，方便識別 [FSICDB20-27],

以致其不適宜名列於消防裝置承辦商註冊紀錄冊；及繼續將其列入消防裝置承辦商註冊紀錄冊內，會妨礙《消防條例》的妥當執行。紀律委員會於2020 年12 月3 日按該規例第10(2)(a) 條，命令將富裕工程有限公司從第1級及第2 級消防裝置承辦商註冊紀錄冊中刪除，為期6 個月21 天。現闡述有關命令的理由如下：

命令理由

3. 註冊承辦商代表在研訊時就上述各項不當行為作出求情。紀律委員會已仔細考慮了註冊承辦商代表的求情及註冊承辦商過往曾有相同纪律處分的記錄。

4. 在紀律委員會除了參考過以往涉及同類不當行為所作出的命令，亦有留意上述6 項不當行為的性質(見下面列表)。

涉及地點	涉及範圍	個案編號	不當行為性質	刪除期間
地點一 [“Location 1”	全幢	FSICDB20-20 [“Case 20”]	沒有貼上藍色標記	21天
	全幢	FSICDB20-21 [“Case 21”]	沒有提交關閉通知書	2個月
	全幢	FSICDB20-22 [“Case 22”]	沒有提交延長關閉通知書	2個月
地點二 [“Location 2”]	地下C 舖	FSICDB20-24 [“Case 24”]	向客戶提供虛假資料	2個月
	地下B 舖	FSICDB20-25 [“Case 25”]	不合理延誤工程	2個月
	地下B 舖	FSICDB20-27 [“Case 27”]	沒有貼上藍色標記	21天

5. 鑑於相關案情的獨特性及嚴重性，當中的不當行為涉及不誠實、和以年計的疏忽／延誤，紀律委員會認為譴責明顯未能反映案情的嚴重性。此外，紀律委員會也參考了香港法例第572 章《消防安全(建築物)條例》旨在強制要求業主提升舊式綜合用途樓宇的消防安全的目的，不容置疑的是註冊消防裝置承辦商擔當著重要角色，以協助業主完成安裝相關主要消防裝置。按本案的嚴重性、和註冊承辦商屢錯屢犯的不負責任行為，從註冊紀錄冊中刪除乃是最合適的命令。

6. 由於涉及多項不當行為，紀律委員會小心考慮了上述6 項刑期應同期或分期執行的判刑原則。重複上述第4 段列表的摘要，由於涉及地點一的3 項不當行為源於同一事件，性質亦相似，考慮到這些不當行為有可能影響消防人員執行滅火工作，紀律委員會採納了同期執行的原則，小計為2 個月。另一方面，涉及地點二的3 項不當行為雖源於同一事件，但涉及同一座樓宇的不同位置，當中的三種不當行為性質亦迥異，因此紀律委員會採納了分期執行的原則，小計為4 個月21 天。由於以上兩組不當行為屬於兩宗不同的獨立事件，因此兩組的命令分期執行，總計為6 個月21 天。

7. 紀律委員會亦有考慮到總刑期原則，認為總計刪除期間是公正及合乎比例的，足以反映註冊承辦商的罪責，亦具足夠的阻嚇作用。” (emphasis added)

7.  In other words, in general, the Board considered the mitigation, REL’s past records of similar disciplinary sanction and the past sanctions imposed in other cases (§§3-4 of the Board’s Reasons).

8.  In respect of the removal order, as explained in §5, the Board imposed the removal order for the following reasons:-

(1)  The uniqueness of the misconduct;

(2)  The severity of the misconduct;

(3)  The dishonesty in the misconduct;

(4)  The negligence or delay in the misconduct; and

(5)  The important role played by a contractor to facilitate the objective of the Fire Safety (Buildings) Ordinance (Cap 572); and

(6)  The irresponsible attitude of REL as reflected by its repeated misconduct.

9.  As regards concurrent and consecutive sentences, at §6, the Board set out the following reasons:-

(1)  REL was involved in several counts of misconduct;

(2)  For three counts of misconduct in Location 1, (a) they arose from the same event, (b) the nature was similar, and (c) the misconduct would affect the firefighting of the Fire Services, and so a concurrent sentence of 2 months was appropriate; and

(3)  For the three counts of misconduct in Location 2, (a) they arose from the same event, (b) but the nature was not the same, (c) the flats or shops involved were not the same (though in the same building), and so consecutive sentences were appropriate.

10.  The Board did not stop there. As can be seen at §7, it considered the totality, considering that the total sentence was fair just and proportional to reflect the culpability of REL and to act as deterrence.

III.  SCOPE OF THE APPEAL

11.  As mentioned above, by the HCMP 2378/2020 Judgment, Au-Yeung J remitted the 6 cases only for (1) giving reasons and (2) reconsidering the sentences in the light of the successful appeal against some of the other convictions. Therefore, it is not for REL to have the second bite of the cherry to appeal against the sentences on grounds other than the adequacy of reasons and in relation to the reconsideration of the sentence upon the successful appeal against some of the other convictions. That said, the sentence now is, in my view, “fresh” in the sense that (1) reasons were given; and (2) sentence was given in respect of only those convictions upheld by the HCMP 2378/2020 Judgment, while the sentences for those set-aside convictions must have fallen away. Therefore, I am of the view that I should consider the appeal in respect of the sentences in this light, but would not consider any submissions or grounds which would effectively amount to a second bite of the cherry.

12.  What does this mean? To answer this question, it is important to appreciate what were the sentences before the HCMP 2378/2020 Judgment and what were the sentences thereafter.

IV.  SENTENCES BEFORE AND AFTER HCMP 2378/2020 JUDGMENT

13.  In this regard, Ms Clara Wong, counsel for REL, has helpfully prepared a table setting out the convictions (both set-aside convictions and the remaining convictions now in the present appeal) and sentences. I adapt the table as an Annex to this Judgment. That table is in fact similar to the table in §9 of the HCMP 2378/2020 Judgment, but Ms Wong has helpfully shaded the present 6 cases in the table. For those items that are shaded in grey in the Annex are the 6 cases in the present appeal, the only convictions remaining after HCMP 2378/2020 Judgment. For those unshaded items, they are convictions set aside in the HCMP 2378/2020 Judgment. The shading added by Ms Wong makes it easier to understand how the sentences were supposed to run and what effect, if any, the setting-aside of those convictions has had on the sentences.

14.  It can be seen from the Annex that originally, for Location 1, there was one more conviction (namely, Case 19) (having been set aside), and the sentence for that conviction was a 4-month removal order to run concurrently with the sentences imposed for Cases 20, 21 and 22 (now before me). As a result of the concurrency, a 4-month removal order was imposed for the convictions in Location 1.

15.  For Location 2:-

(1)  There was a 2-month removal order for Case 23 (having been set aside) to run concurrently with the 2-month removal order for Case 24 (now before me). So, the net effect was that there was a 2-month removal order.

(2)  There was a 2-month removal order for Case 26 (having been set aside) to run concurrently with the 2-month removal order (now before me). So, the net effect was that there was a 2-month removal order.

(3)  There was a 1-month removal order for Case 28 (having been set aside) to run concurrently with the 21-day removal order for Case 27 (now before me). So, the net effect was that there was a 1-month removal order.

16.  The sentences for the two Locations were to run consecutively, and therefore, the net effect was that REL was removed from the list for 9 months in total.

17.  Now, with those convictions set aside, as set out in §4 of the Board’s Reasons, the Board took away the sentences for the set-aside convictions. The Board concluded at §8 of the Board’s Reasons that the removal order would be 6 months and 7 days long.

18.  Therefore, while the individual sentences are not subject to appeal, pursuant to HCMP 2378/2020 Judgment and 4 March Order, it would be the totality of the sentence in the light of certain convictions having been set aside that should be reconsidered. The scope of the present appeal should be limited to this (in addition to adequacy of reasons). I shall consider this in dealing with Grounds 1, 4, 6, 7 and 8 as a group below in relation to excessiveness of the sentences.

V.  LEGAL PRINCIPLES

19.  The relevant legal principles in relation to an appeal under Order 55 rule 7 are not in dispute. The following are highlighted.

20.  First, Order 55 rule 7(7), pursuant to which the present appeal is lodged, provides as follows:

“The Court shall not be bound to allow the appeal on the ground merely of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court substantial wrong or miscarriage has been thereby occasioned.” (emphasis added)

21.  Second, in this regard, Ms Wong fairly refers me to Legend Engineering (Hong Kong) Company Limited v Director of Fire Services [2025] HKCFI 585 at §14 per DHCJ KC Chan, where His Lordship said:-

“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).” (emphasis added)

22.  Ms Ebony Ling, counsel for the Board, refers me to the next paragraph of the same case:-

“… (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… and (b) the threshold for challenging the finding of a professional tribunal is high…” (emphasis added)

23.  Consistently, in the context of disciplinary sanctions, as expounded by Kwan VP (with Chu VP and Au JA) in Wan Pak-Kwong Raymond v The Nursing Council of Hong Kong [2023] HKCA 272 at §§19-21:-

(1)  The Court should be cautious against treating penalties imposed by professional bodies as tariffs in criminal sentencing.

(2)  The professional body enjoys a margin of discretion when it comes to deciding what it considers necessary at the time to maintain professional standards, and the Court accords an appropriate measure of respect to the judgment of such tribunal in imposing penalties.

(3)  “…a disciplinary tribunal or committee has to exercise their judgment on penalty by reference to the facts of that particular case, their assessment of the seriousness of the findings and the measures that need to be imposed to reflect the same and to maintain the standard of the profession. In these matters, in particular the latter two aspects, professional judgment and expertise are highly germane.” (original emphasis)

(4)  The Court recognises there can be variation in sentencing by different members of the committee. “So long as the sanction imposed falls within the reasonable range of options, the court will not intervene.” (original emphasis)

(5)  “…members of the Council are best equipped to decide what is the right penalty to impose, and the court’s interference is only justified if the penalty imposed can be said to be clearly wrong and unwarranted”. (original emphasis)

24.  I see no material difference in the Board. Although fire service installation contractors are not subject to self-regulatory body such as solicitors to the Law Society, the only difference is that the body regulating fire service installation contractors is a government authority with the relevant expertise in the matter. In my view, this difference, at least in the context of an appeal against conviction and sanction, has no material significance on these legal principles.

25.  Third, “[e]ven 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 §20 of the HCMP 2378/2020 Judgment.   

26.  Fourth, in relation to adequacy of reasons, it depends on “the context in which the decision maker is operating and the circumstances of the case in question”. The reasons may be brief, and need not address every single point: see §§39-44 of the HCMP 2378/2020 Judgment. It, however, must enable the reader to understand and the aggrieved person to assess prospects of obtaining alternative reliefs or resolutions: see Zhao Hong Cora v Registration of Persons Tribunal [2025] HKCFI 5276.

27.  Fifth, while the present case is not on sentencing in criminal cases, I think, consistent with the fourth point above, the comments in Cross & Cheung, Sentencing in Hong Kong (11^th edition) §37-23 is relevant: “there is no magic formula as to the contents of reasons for sentence, and it is ‘a question of fact and degree in each matter as to whether the reasons provided are adequate’”.

28.  With the above legal principles in mind, I shall deal with the Grounds of Appeal set out in the Notice of Originating Motion. Ms Wong, for REL before me, is not the one settling the Grounds of Appeal. In her Skeleton Submissions, she sensibly groups the various Grounds of Appeals and streamlines the submissions on the grounds as grouped. I shall consider these groups according to the order of Ms Wong’s Skeleton Submissions.

VI.  GROUNDS 1, 4, 6, 7 AND 8

29.  Under Grounds 1, 4, 6, 7 and 8, REL complains that the sentences, viewed individually or as a whole, was manifestly excessive.

30.  Ms Wong, in particular, refers to the Board’s evidence filed in the present appeal which stresses that the Board could not impose fresh sentences. In reliance on such evidence, Ms Wong submits that the Board erred in law in considering itself handicapped from reconsidering the total sentence imposed against REL, thinking that HCMP 2378/2020 Judgment only ordered it to give reasons.  With respect, I disagree:-

(1)  At §6 of the Board’s Reasons, the Board clearly considered whether to have the remaining sentences, for the remaining convictions, to run concurrently or consecutively. To decide whether sentences should run concurrently or consecutively is an exercise of discretion being part of the consideration on the totality of sentence: see Archbold Hong Kong 2025 §5-91.

(2)  At §7 of the Board’s Reasons, the Board expressly considered the totality of the sentence itself together with justice and proportionality.

(3)  On contrary to Ms Wong’s submissions, the Board’s evidence (even assumed to be admissible to explain the Board’s Reasons) that stresses that the Board could not impose fresh sentences is in line with, and essentially a direct copy of, 4 March Order. One must note that 4 March Order at the same time made it clear that in giving the reasons, the Board should bear in mind that re-consideration was necessary because some convictions had been set aside. This Order in fact just reflects §§116 and 118 of the HCMP 2378/2020 Judgment.

(4)  Against such backdrop, the Applicant has a heavy burden to convince me that the Board considered itself handicapped as REL suggests, and in the circumstances, in my view, REL has failed to discharge such a burden. On the evidence, on the strength of the language used in the Board’s Reasons understood against the backdrop as explained above, I find that the Board must have such re-consideration in giving the reasons, and did not consider itself handicapped in respect of the totality of the sentences.

31.  In other words, the Board did consider the totality of the sentence bearing in mind that some convictions were set aside and provided reasons for the sentences. The issue thus is whether the totality was manifestly excessive or just, and to determine this issue, one must assess the reasons for the sentences.

32.  In this regard, Ms Wong submits that a removal order now imposed on REL is a heavy penalty with significant consequences, and this is particularly so when REL only had one past disciplinary record over 20 years, the 6 convictions in questions are not court convictions, REL pleaded guilty in these 6 cases, the ramification was severe and there was no express finding of dishonesty.

33.  As regards any finding of dishonesty, the Board’s Reasons specifically referred to the brief facts on which the charges were brought against REL. From the brief facts of the 6 cases, it is clear that Case 24 was the case where dishonesty was involved. The brief facts for Case 24 stated:-

“由2017 年12 月至2020 年5 月期間，富裕的代表一直向C 號舖的業主代表表示裝置工作進行中，並會向消防處提交消防裝置圖則。富裕的代表亦表示由於C 號舖與B 號舖一樣，所以一併提交消防裝置圖則予消防處。然而，截至2020 年6 月12 日，富裕從未就C 號舖的消防裝置的裝置工程提交任何消防裝置圖則予消防處。富裕就裝置工程的進度，向對它作出指示的人提供虛假或誤導的實料” (emphasis added)

34.  Although the word “dishonesty” was not used, “providing false or misleading information” was used. While Ms Wong is right that “providing false or misleading information” (as opposed to “knowingly” providing such information) itself would not necessarily connote dishonesty, reading the brief facts in context, in particular the long period of such information being provided and REL’s representation that it would submit the plan for Shop C with that for Shop B but eventually no plan for Shop C was provided but only the plan for Shop B was submitted, the reader can reasonably understand that the brief facts and the accusation in Case 24 involved dishonesty.

35.  When there was dishonesty involved, despite the other factors highlighted by Ms Wong in her submissions (§32 above), bearing in mind the relevant legal principles set out in Part V above, I am satisfied that the sentence was within the reasonable range, not excessive and just.

36.  Therefore, Grounds 1, 4, 6, 7 and 8 fail.

VII.  GROUNDS 2, 3 AND 8A

37.  For Grounds 2, 3 and 8A, first, Ms Wong submits that the Board erroneously considered REL’s past disciplinary conviction in 2012 as a similar conviction and in any event that such consideration was irrelevant. She refers specifically to §3 of the Board’s Reasons “紀律委員會已仔細考慮了註冊承辦商代表的求情及註冊承辦商過往曾有相同紀錄處分的記錄”. Ms Wong submits that the reference to the past record in §3 of the Board’s Reasons was made under the heading “Reason for the Order” (命令理由) in the Board’s Reasons, and thus the past record must be part of the reason.

38.  Ms Ling submits that this past record played no role in the sentencing according to the Board’s Reasons. In my view, §3 of the Board’s Reasons simply set out what was submitted before the Board and what the Board considered as background for the reasons to be detailed in the subsequent paragraphs, and in explaining the sentencing in §§5-7, this past record was not mentioned at all. In coming to this view, I must mention that I do not consider the Board’s affirmation deposing that the Board did not consider the past record. Such evidence is, in my view, not appropriate. The Board should have set out all the reasons in the Board’s Reasons, and cannot subsequently supplement the Board’s Reasons by way of affirmation in an appeal hearing. This could cause unfairness to the Applicant.

39.  Second, Ms Wong submits that the Board erroneously considered itself handicapped from re-considering the sentences, and thus the Board failed to consider the totality of the sentence. I disagree for the reasons set out in §§30-31 above.

40.  Third, Ms Wong submits that the Board failed to explain what past orders imposed against other contractors for similar conduct (mentioned in §5 of the Board’s Reasons). In my view, like the REL’s past record considered by the Board, the Board only considered it but it was not the reason for the sentences. In any event, I do not see the need to explain in detail how the other sentences were made use of because first, those sentences were not tariffs (as explained by the Court of Appeal in Wan Pak-Kwong Raymond v The Nursing Council of Hong Kong, supra, mentioned in §23(1) above); and second, mentioning the Board’s consideration of the past sentences would be adequate reasoning in the context.

41.  Therefore, Grounds 2, 3 and 8A fail.

VIII.  GROUND 6

42.  In respect of Ground 6, Ms Wong submits that the Board erred in adopting an inconsistent and unprincipled approach in deciding concurrent and consecutive sentences for the 6 cases.

43.  As is set out in §4 of the Board’s Reasons, the sentences were set out with reference to two locations. For Location 1, a concurrent sentence was imposed, while for Location 2, consecutive sentences were imposed. For a better understanding, I point out that Location 1 refers to a building in Wan Chai, while Location 2 refers to a building in Sheung Wan.

44.  Ms Wong submits that the nature of the three counts of misconduct committed within Location 2 is similar and the misconduct under these three counts arose from the same event, and therefore, she submits, like Location 1, the sentence for the three counts should be concurrent.

45.  With respect, I point out that as a matter of fact:-

(1)  The nature of the three counts of misconduct in Location 2 is not similar. In particular, as can be seen from the Annex, the count of misconduct in Case 24, as found above, involved dishonesty, while the other two counts (Cases 25 and 27) did not. On the contrary, the three counts in Location 1 did not involve any dishonesty.

(2)  While the three counts of misconduct are said to have occurred in Location 2, as can be seen from the Annex, two counts without dishonesty occurred in respect of Shop B and Case 24 occurred in respect of Shop C, unlike those in Location 1 which occurred in respect of the whole Location 1.

(3)  While the three counts are said to have arisen from the same event, they did not arise from the same facts. I cannot say that imposing consecutive sentences for offences not arising from the same fact is out of any reasonable range.

46.  As pointed out by Ms Ling, as a matter of law, it is a discretion whether to order concurrent or consecutive sentences: see Sentencing in Hong Kong (11^th edition) §10-3; a fortiori when the disciplinary body would be in a better position to determine how the professional standards and interests would be served by appropriate sentencing (see §§23-24 above).

47.  Having considered the facts specifically pointed out in §45 above and the Board’s Reasons in explaining why a concurrent sentence was imposed for Location 1 and consecutive sentences were imposed for Location 2, I am satisfied that the respective concurrent sentence and consecutive sentences were within the reasonable range, not excessive by any comparison exercise as carried out by Ms Wong, and just.

48.  So, Ground 6 fails.

IX.  OTHER GROUNDS

49.  As I mentioned above, Ms Wong, counsel for REL, is not the one who settled the Grounds of Appeal. Ms Wong (rightly in my view) does not make any submissions in respect of part of Ground 3, Ground 5, Grounds 8B and 8C, which have no merits at all.

X.  CONCLUSION

50.  In the circumstances, I dismiss REL’s appeal. I agree with Ms Wong that the Board’s position in respect of the scope of the appeal did not appear as sensibly as in Ms Ling’s Skeleton Submissions but appeared that the Board took the stance that even the totality of the sentences could not be appealed at all. I accept Ms Wong’s submissions that as a result of such stance, REL spent some costs and time on this issue in preparing the affirmation in reply. Adopting a broad brush approach, I order REL to pay 85% of the costs of the appeal to the Board. The total costs is summarily assessed at HK$200,000, thus 90% being HK$170,000.

51.  I thank Ms Wong and Ms Ling for their assistance.

Annex