RICH ENGINEERING LTD v. FIRE SERVICE INSTALLATION CONTRACTORS DISCIPLINARY BOARD AND ANOTHER

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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BETWEEN

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J U D G M E N T

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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 1^st 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:

(1) The Order or any part thereof be set aside; and

(2) Alternatively, the Order be varied to the effect that REL be reprimanded or the removal period of REL’s name from the Register be reduced.

B. BACKGROUND

5.  At the relevant time, FSD inspected the FSI works carried out by REL for its customers at, amongst others, 2 locations:

(1) Tsang’s Building in Wanchai (“Location 1”), being the subject matter of Cases #19 to #22; and

(2) Shop B and Shop C in G/F of Po Hing Building, Sheung Wan (“Location 2”), being the subject matter of Cases #23 to #28.

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).

(1) FSD’s representative, Mr Wong Ka Wing was the Chairman.

(2) FSD’s case was presented to the Board by an FSD officer acting as the presenting officer (“Presenting Officer”) (who was assisted by 2 other FSD staff).

(3) REL, who was represented by Mr Wong Ka Fai (“Mr Wong”), admitted all charges in the Statements of Grounds and Brief Facts after the Presenting Officer had read out the same.

(4) Mr Wong was allowed to make oral submissions and mitigate.

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:

Case No.	Board’s orders to remove the name of REL from the Register
	Charge	Period	Execution of orders	Sub-total period of removal
#20-12		14 days	These two orders to run concurrently	14 days
#20-13		14 days
Location 1
#20-19	issuing false/misleading certificate	4 mths	These four orders to run concurrently	4 mths
#20-20	failing to stick blue label on newly completed but not yet operative FSI	21 days
#20-21	no notice to FSD to shut down FSI for work	2 mths
#20-22	no fresh notice to FSD to shut down FSI for work	2 mths
Location 2
#20-23	failure to install FSI within reasonable period (Shop C)	2 mths	These two orders to run concurrently	2 mths
#20-24	furnishing false or misleading information to instructor of REL re progress of installation (Shop C)	2 mths
#20-25	failure to install FSI within reasonable period (Shop B)	2 mths	These two orders to run concurrently	2 mths
#20-26	furnishing false or misleading information to instructor of REL in respect of progress of installation (Shop B)	2 mths
#20-27	failing to stick blue label on newly completed but not yet operative FSI (Shop B)	21 days	These two orders to run concurrently	1 mth
#20-28	failure to provide information to FSD impeding its investigation	1 mth

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:

(1) The Inquiry Hearing contravened the mandatory statutory procedure under Regulation 9(3) (i.e. Ground 1AA) (“Contravention of Mandatory Statutory Procedure Ground”);

(2) The FSD played a dual role at the Inquiry Hearing by being both the Chairman of the Board and the Presenting Officer, thereby breaching the rule of natural justice or showing apparent bias (i.e. Ground 1BB) (“Dual Roles Ground”);

(3) REL was not allowed to express any opinion and/or make representations on FSD’s allegations at the Inquiry Hearing (i.e. Grounds 1A and 1C) (“Deprivation of Representation Ground”);

(4) The Board erred in law in compelling Mr Wong to answer incriminating questions and failing to remind him of his right not to answer incriminating questions (i.e. Grounds 1B and 1C) (“Self-Incrimination Ground”);

(5) The case against REL was based on documentary evidence without any of the prosecution witnesses subject to cross-examination (i.e. Ground 1C) (“No Cross-Examination Ground”);

(6) The Board erred in law in its failure to give any reason or explain why REL had breached the Regulations (i.e. Grounds 2, 7A and 8A) (“Failure to give Reasons Ground”);

(7) Insufficient time and disclosure was given to REL to prepare for the Inquiry Hearing and to make representation (i.e. Ground 3) (“Insufficient Preparation Time Ground”);

(8) The Board made errors of fact and/or erred in taking into account certain matters (“Errors of Fact Ground”) in respect of the charges for both Locations.

(9) The Board failed to give reasons for its sentence, failed to consider the totality and the sentence was manifestly excessive (i.e. Grounds 4, 5 and 6) (“Sentence Ground”).

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:

(1) A member of the committee of the Fire Insurance Association of Hong Kong nominated by that association;

(2) A public officer nominated by the Building Authority;

(3) A public officer nominated by the Water Authority;

(4) A registered contractor nominated by the Director;

(5) The Director or his representative appointed by the Chief Executive as the Chairman of the Board in this case pursuant to Regulation 9(3); and

(6) A legal adviser appointed by the Director (“Legal Adviser”).

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:

“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.” (underline added)

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:

(1) The Director had an active role under Regulation 10(1) to decide whether the name of a registered contractor should remain on the Register;

(2) A representative of FSD acted as the prosecutor at the Inquiry Hearing;

(3) FSD enforces the Board’s decision arising from the disciplinary proceedings (or stays the enforcement action until the appeal is disposed of). Therefore, FSD has been added as a party as the reliefs now sought by REL are to be enforced by FSD if those reliefs are allowed by the Court; and

(4) The affirmations filed by the Respondents at this hearing were affirmed by the Assistant Division Officer (Prosecution) of FSD), showing that FSD was an interested party.

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:

(1) Regulation 12(1) only provides that a registered contractor who is aggrieved by an order made in respect of him by a disciplinary board may appeal to the CFI. There is nothing in Regulation 12(1) which gives power to the Court to review any decision made by the Director, whether based on the Director’s referral of a matter to the Board or by his taking of subsequent action in compliance with any order made by the Board.

(2) In respect of the inquiry procedure provided for under the Regulations, the Director in fact makes no decision as to the merits of the Cases, only a referral of the Cases to the Board. It is the Board itself which examines the materials before it and decides on the merits of the charges. In doing so, it may hear and examine witnesses on oath, summon any person to attend a hearing before the Board and inspect the premises in which any FSI has been. See Regulation 11(1).

(3) Even if the Director did make any decision on the merits (which he did not in the present case), the decision of the Board would have superseded the decision of the Director in any event and the challenge can only be made against the Board’s decision. This approach is a well-recognised one. In De Smith’s Judicial Review (9^th edn), the learned authors say at §3-030:

“A decision may be part of a two-tier process, so that an initial determination is superseded by a later one, with the effect that the first decision may no longer be challenged…”

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:

(1) In Dato Tan Leong Min v Insider Dealing Tribunal [1999] 2 HKC 83, the conduct being complained of was that the Insider Dealing Tribunal (“IDT”) had conducted the inquiry in a manner which was unfair and contrary to the rules of natural justice. As the IDT was directly involved in the impugned conduct, it was properly joined as a respondent to the judicial review proceedings.

(2) Orrico Philippe and Nomad Restaurant Management Ltd v Municipal Services Appeals Board And Liquor Licensing Board [2015] 4 HKLRD 111 involved a challenge to a decision of Municipal Services Appeal Board (“MSAB”) upholding a decision by the Liquor Licensing Board (“LLB”). The practice was for the MSAB to take a neutral role and to provide the Court with as much information as possible (§§12-13). Lam VP (as he then was) specifically held at §§47 and 48 that the LLB’s appearance at the judicial review proceedings was “in accordance with the usual practice in judicial reviews challenging the decisions of the MSAB on liquor licences”. LLB took a neutral stance but its attendance at the hearing was restricted to providing the court with submissions relating to factual matters to assist the court. Lam VP referred to Sze Ning Hung v Director of Food and Environmental Hygiene (CACV 160/2014, 29 December 2014) wherein Cheung JA (at §33) explained that LIAB was joined as a respondent because the LLB’s decision (on merits) was considered at the hearing dismissing leave to apply for judicial review.

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:

“(4) The Director shall not take any action in compliance with an order under paragraph (2) –

(a) If an appeal is lodged with the Court of First Instance under regulation 12(1), until the appeal is finally determined; …” (emphasis added)

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:

“The Chief Executive may appoint one of the persons specified in paragraph (2) as chairman of the disciplinary board, and the legal adviser shall conduct the proceedings under the direction of the chairman.” (underline added)

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:

(1) By chairing the Inquiry Hearing, the Director was in effect acting as a judge in his own cause over the allegations made by his own departmental staff against REL; and

(2) The Board was dominated by a majority of Government officials, which could hardly be said to satisfy the doctrine that justice must be seen to be done.

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.

(1) As stated by Kwan JA, the attack there is on the system. The Court must focus on the systemic challenge and apply a principled approach. (§59)

(2) The test for apparent bias is whether a fair-minded and informed observer, having considered the relevant facts, would have a reasonable apprehension of bias. (§§2, 59, 137-143)

(3) Kwan JA cites Lord Hope in Gillies v Secretary of State for Work and Pensions [2006] UKHL 2 for 2 principles: one is the concept of independence – that no one can be a judge in his own cause. The other is the concept of impartiality that justice must not only be done but must be seen to be done. Impartiality consists in the absence of a predisposition to favour the interests of either side in the dispute. (§61, citing Lord Hope in Gillies)

(4) Impartiality is not the same as independence, although the two are closed linked. Impartiality is the tribunal approach to deciding the cases before it. Independence is the structural or institutional framework which secures this impartiality, not only in the minds of the tribunal members but also in the perception of the public. The public are now represented by the fair-minded and informed observer. (§62 and §117, citing Baroness Hale in Gilles)

(5) Challenges based on a lack of independence and impartiality may be brought on an institutional level. If the system is structured in a way that creates a reasonable apprehension of bias on an institutional level, the requirement of impartiality is not met. (§64)

(6) If apparent bias is established, the next question is whether the “curative principle” applies, ie that decisions which do not fully comply with procedural fairness requirements can be cured if the person affected has recourse to a further hearing or appeal which itself provides fairness. (§67, Kwan JA).

(7) Kwan JA explains that if either the initial decision-making body is independent and impartial, or it is subject to subsequent control by a judicial body that had “full jurisdiction”, Article 10 of HKBORO[1] is complied with. This approach is based in large part on an assessment if, in all the circumstances of the original hearing and subsequent appeal, the procedure as a whole would satisfy the requirements of fairness. The learned JA goes on to note that of particular importance are (a) the gravity of the error committed at first instance, (b) the likelihood that the prejudicial effects of the error may also have permeated the rehearing, (c) the seriousness of the consequences for the individual, (d) the width of the powers of the appellate body and (e) whether the appellate decision is reached only on the basis of the material before the original tribunal or by way of fresh hearing, or rehearing de novo. (§§67,69).

(8) “Full jurisdiction” in this context does not necessarily mean full decision-making power but jurisdiction to deal with the case as the nature of the decision requires. (§68, applying Lam Siu Po v Commissioner of Police (2009) 12 HKCFAR 237 at §§116 & 122 per Ribeiro PJ).

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:

(1) In the context of prison disciplinary proceedings, the fair-minded and informed observer would be realistic and pragmatic and would attach importance to the Superintendent’s specific knowledge and familiarity with his prison.

(2) The Superintendent had limited direct contact with front-line reporting officers and was not involved in the direct supervision of prisoners.

(3) The complaint was generally in relation to the institutional framework of prison disciplinary proceedings and there was no particular reason which gave rise to suspicion of bias.

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:

“21. There is no doubt at all that if a statutory scheme were constituted in such a way that the same official investigates the complaint, appoints the disciplinary board, formulates charges, prosecutes those charges and finally sits in judgment to adjudicate on those charges that scheme offends Article 10. Nothing more needs to be said on this matter.

22. The problem with this case, making it difficult for the judge to analyse the constitutionality of the statutory scheme, is that operationally the scheme may well be defective: defective, that is to say, in the way it is actually operated by the Director. For instance, in the “General Notes on Disciplinary Procedure” made by the Director for disciplinary hearings, para 5 says:

“(5) If the plea is one of guilty, Counsel for the Director outlines the facts of the case for the Director”. (Emphasis added).

23. The Notes go on to state that if the plea is one of not guilty, it is Counsel for the Director who prosecutes: he or she would then be prosecuting the charges “brought by the Director”. (underline original)

24. This clearly would make the Director both “prosecutor” and “judge”. If a scheme is flawed operationally in this way, it may go a long way to showing that it is flawed constitutionally. But, at the end of the day, what has to be judged is not how it works in practice, but how the legislature has formulated the scheme.” (underline added)

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:

“27. … It seems to me that the draftsman of s11G(1) has chosen his words carefully, and “bringing the matter to the notice of the board” is not necessarily the same thing as formulating charges and prosecuting them before the board…

…

37. … As it seems to me, the words in s11G(1) “the Director may bring the matter to the notice of a disciplinary board” do not necessarily cast the Director in the role of prosecutor or complainant at the hearing: the point has simply been bedevilled by the fact that the procedures and rules as drawn up (not by statute) do cast the Director in that role.

38. Further, again because of the stance taken by Mr Dykes, we have not had the benefit of submissions as to why the legislature created a board as constituted under s11E(2) and, in particular, what public interest is thought to be served by a board composed in this way. There may well be reasons of good administration for such a board which we have not perceived.

(2) If the presence of the Director or his representative on the board, and acting as its chairman, renders the board defective in terms of Article 10 because of s11E(2)(d), it is at least tempered by this fact: s11E(2)(a) requires that one of the 6 members must be a registered lift or escalator contractor: someone who might be expected to be sympathetically inclined towards the suspect. Further, all the other persons on the board are in the private sector: professional people who can be expected to understand the problems and difficulties of the suspect. This is clearly a case where… the defect, if there be any defect would be “cured” by the full appellate process.”

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:

(1) Similar to Wong Tak Wai, a fair-minded and informed observer would be realistic and pragmatic and would attach importance to the Chairman’s specialist knowledge in FSI.

(2) There is nothing to show that members of the Board were a close-knit group sharing espirit de corps.

(3) Similar to Otis Elevator (CA), the draftsman of Regulation 10(1) had chosen his words carefully in that the phrase “refer the matter to the disciplinary board” is not the same thing as formulating charges and prosecuting them before the Board.

(4) The Board has a nominated member of the committee of the Fire Insurance Association of Hong Kong who would have interest in seeing FSI contractors behaving at a reasonable standard. A registered contractor in the private sector sitting on the Board may also understand the difficulties of REL. The Chairman and the Legal Adviser together were a minority of the Board.

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:

(1) Before Case #23, Mr Wong had pleaded to 6 charges already[2]. There was no difficulty expressed by him.

(2) Mr Wong initially declined to admit the charge for Case #23. The Chairman asked him which part of it he did not admit, rather than repeating his question as to whether Mr Wong agreed to the ground, as alleged by REL. In response, Mr Wong made a statement to explain his case. (B/86-87)

(3) The Chairman then asked Mr Wong again if he agreed to the Statement of Grounds for Case #23, to which the latter agreed. The Chairman followed up by asking if Mr Wong understood the grounds and agreed the same, to which the latter replied in the positive. At the suggestion of the Legal Adviser, and with the agreement of the Chairman, the Statement of Grounds was read again to Mr Wong. Mr Wong then replied that he understood and agreed to the Grounds. (B/88-89)

(4) The course of proceeding illustrated clearly that Mr Wong knew what to admit and what not to admit. Although he may not be able to decide if his answer to Case #23 amounted to admission or denial, he was free to state his case.

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:

(1) compelling Mr Wong to answer incriminating questions contrary to the proviso of Regulation 11(3); and

(2) failing to remind Mr Wong of his right not to answer any incriminating questions.

56.  Regulation 11(3) of the Regulations provides that:

“Any person who being summoned to attend as a witness or to produce any document or any other thing at a hearing of the disciplinary board refuses or neglects to do so or to answer any questions put to him by or with the concurrence of the disciplinary board shall be guilty of an offence…Provided that no person shall be bound to incriminate himself and every witness shall in respect of any evidence given by him before the disciplinary board be entitled to the same privileges to which he would be entitled if giving evidence in civil proceedings before the Court of First Instance.”

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:

“At common law, a person has the privilege from being compelled to answer questions, the answers to which might tend to expose him to any punishment or penalty (including disciplinary one) and this privilege is capable of application in non-judicial proceedings...”

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:

(1) in convicting REL of misconduct or negligence merely based on documentary evidence (including hearsay statements) without calling any witnesses to testify; and

(2) by failing to remind REL of its right to cross-examine any of the prosecution witnesses.

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:

“So the inspector relied on Mr. Fogwill's letter. So did the Minister in his decision. Mr. Dobry said that they ought not to have relied on it at all. It ought not even to have been admitted because it was hearsay. It was not on oath, no opportunity was given to test it by cross-examination, and it was objected to. Mr. Dobry said that in these circumstances it was contrary to natural justice for it to be admitted.

In my opinion this point is not well founded. A tribunal of this kind is master of its own procedure, provided that the rules of natural justice are applied. Most of the evidence here was on oath, but that is no reason why hearsay should not be admitted where it can fairly be regarded as reliable. Tribunals are entitled to act on any material which is logically probative, even though it is not evidence in a court of law: see Reg. v. Deputy Industrial Injuries Commissioner, Ex parte Moore During this very week in Parliament we have had the second reading of the Civil Evidence Bill. It abolishes the rule against hearsay, even in the ordinary courts of the land. It allows first-hand hearsay to be admitted in civil proceedings, subject to safeguards. Hearsay is clearly admissible before a tribunal. No doubt in admitting it, the tribunal must observe the rules of natural justice, but this does not mean that it must be tested by cross-examination. It only means that the tribunal must give the other side a fair opportunity of commenting on it and of contradicting it…” (underline added)

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:

“39. Where there is a duty to give reasons, it must be discharged by giving adequate reasons. What would amount to adequate reasons for a decision would depend on the context in which the decision maker is operating and the circumstances of the case in question.

…

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

43. Secondly, when deciding on questions of indecency or obscenity, there may be cases where the contents of the articles in question would virtually speak for themselves. In these instances, the duty to give reasons could be discharged by describing the contents without much more. Apart from cases of this kind, a decision on indecency or obscenity which merely recites the statutory guidelines in section 10 would not normally be adequate. Such statements would in effect assert conclusions and would not reveal why the Tribunal has come to such conclusions.

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

45. Fourthly, where a point of law is raised the point has to be decided by the presiding magistrate and the statute expressly requires reasons to be given in writing. See section 7(3). Reasons for a decision on a point of law should usually set out the findings of fact, the point of law at issue and the process of reasoning leading to the conclusion.”

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 3^rd. 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:

(1) The inspection was 6 months after the certificate was issued. FSD made no reference to any approved FSI plans. REL queries how those could be used as bases to say that the certificate was false and misleading as at the date of issue.

(2) REL and the owner/manager of Location 1 had 2 contracts, namely, the maintenance contract and FSI improvement work contract. The scope of the maintenance contract was to cater for annual inspection and testing of hose reel, manual alarm systems and one fire extinguisher and did not cover on-going regular servicing.

(3) The non-functioning of FSI might have been due to other reasons. In any event, it was the responsibility of the owner to keep the FSI in efficient working order at all times: Regulation 8(a) of Fire Service (Installations and Equipment) Regulations (Cap. 95B) (“Cap. 95B”).

(4) According to Regulation 10(2) of Cap 95B, “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)”. REL did the annual inspection on 2 May 2019 and issued the certificate on the 3^rd. By virtue Regulation 10(2), the FSI was deemed to be in efficient working order.

(5) Accordingly, the Board failed to support its complaint with clear evidence of dishonesty on the part of REL in proof of falsity or misleading nature of the certificate.

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):

“佢話我延，即係而家講嗰度延誤咗呀，我地我我我同一時間係做Ｂ同Ｃ嘅，因為我地做出572呢，係要經過詳詳細嘅入則啦，又要協調到而家有個租客係度，所以我地個時間可能真係延誤咗，真係延誤咗嘅，咁但係我一路有跟進呢兩個單位嘅真係，咁嗰個B單位呢[3]，亦都可能係個委託我地嘅業主，佢嘅理想嗰個嗰個進度呢，係大我我有差異，我亦都係之後呢將啲錢回番畀佢，就冇再做呢單工程啦。至於C，我地嗰個單位嗰個業主就諒解我嘅做法，另外呢而家呢已經係圖則批左啦，已經約咗我12號開始開工，連地，閣樓呢嗰個工程呢都交番畀我做。我希望呀呢一個延誤呢，雖然你話覺得覺得好耐係延誤，但係有呢啲係唔知點為之，點樣釐一釐訂為延誤囉，因為我地同佢車，簽嘅合約，係冇講時間嘅，我只係話會同佢一路做落去。”

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 12^th (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 2^nd 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:

(1) to make representations on their own behalf;

(2) to appear at a hearing or inquiry;

(3) effectively to prepare their own case and to answer the case (if any) they have to meet; and

(4) to take steps to address any fundamental difficulty so that steps can be taken to address it.

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:

“125. In my view, the critical issue in the present proceedings is whether the principles of natural justice have been offended to warrant the intervention of this Court in relation to the decision or decisions made by the relevant bodies. The fundamental principles of natural justice demand that a right or interest of a party should not be affected without getting notice of the matter and an opportunity to be heard in relation to it. The right to a fair hearing requires that individuals or entities should not be penalised by decisions affecting their rights or legitimate expectations unless they have been given prior notice of the case, a fair opportunity to answer it, and the opportunity to present their own case. In this instance, it required in particular the Appeals Tribunal to address the matters raised by the applicant in oral hearing and to properly address these matters in its decision. The decision was unsatisfactory in that it failed to address adequately if at all the issues raised by the applicant so as to know the reasoning of the Appeals Tribunal and how it arrived at its conclusions.” (underline added)

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,

(1) The letters dated 9 October 2020, issued about 2 months before the Inquiry Hearing, were not particularized, e.g. as to the location where the alleged improper conduct or negligence took place. Even if REL had wanted to prepare for the Cases, it would have been unable to do so.

(2) The 12 letters provided on 17 November 2020 totalled 59 pages, each containing a one-page Statement of Grounds in both English and Chinese for each of the 12 Cases. They were only delivered to REL by fax and registered post on 19 November 2020, less than 2 weeks before the Inquiry Hearing.

(3) Just one week before the Inquiry Hearing, more information totalling 137 pages were delivered by hand to REL. (Mr Fung submits that this was in breach of an internal guideline within FSD that documents would be issued not later than 2 weeks before the date of the disciplinary proceedings. However, this was based on his instructions and not evidence and I disregard this aspect of his submission.)

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.