AGGRESSIVE CONSTRUCTION COMPANY LTD v. DIRECTOR OF BUILDINGS (in his capacity as the BUILDING AUTHORITY)

HCMP 952/2025

[2026] HKCFI 337

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGSNO 952 OF 2025

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J U D G M E N T

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A.     INTRODUCTION

1.  By a Notice of Originating Motion filed on 11th June 2025, the Appellant initiated an appeal against the two decisions of the 1st Respondent (“the Director”) acting in his capacity as the Building Authority (“the BA”) set out in the letter from the Buildings Department (“the BD”) of 22nd May 2025 (“the 22.05.2025 Decision Letter”):

1.1     refusing the Appellant’s application of 3rd March 2023 for renewal of its registration on the Buildings Department’s register of general building contractors (“the Register”), and consequently to remove the Appellant’s name from the Register on 20th June 2025 (“the 1st Decision”); and

1.2     dismissing, or refusing to process, the Appellant’s application of 6th February 2024 for addition of Mr Leung Chi Kin (“Mr Leung”) as its proposed Technical Director (“TD”) and Authorised Signatory (“AS”) (“the 2nd Decision”).

2.  The appeal is brought pursuant to s.13A of the Buildings Ordinance (Cap.123) (“the BO”).

3.  The appeal was originally scheduled to be heard in August 2025.  However, the Appellant filed an Amended Notice of Originating Motion on 13th August 2025 (“the ANOM”), adding a number of additional grounds of challenge.  As a result, the Respondents applied for, and obtained, an adjournment to enable the Respondents to file further evidence in opposition to the appeal, and the Appellant to file evidence in response.

B.     THE FACTS

B1.     The regulatory regime

4.  A person wishing to carry out building works or street works (other than specialised or minor works) is required to appoint a registered general building contractor (“an RGBC”).  An RGBC is required to provide continuous supervision to the carrying out of works, notify the BA of any contravention of the regulations that would result from carrying out works, and generally comply with the BO.  See s.9 BO.

5.  Section 8A(1)(a) BO requires the BA to keep a register of RGBCs who are qualified to perform the duties of an RGBC.  Section 8A(1) also provides for the keeping of registers of specialist contractors and minor works contractors.

6.  Section 8B provides for applications for registration as an RGBC or specialist contractor. An applicant must satisfy the BA of various matters, including the experience and qualifications of his personnel, and the ability of the persons appointed by it to act for the purposes of the BO to understand building works and street works through relevant experience and a general knowledge of the basic statutory requirements.  The BA is to have regard to the qualifications, competence and experience of the directors, other officers and any person appointed by the applicant to act for it for the purposes of the BO if the applicant is a body corporate.

7.  Pursuant to s.8B(12), registration is for three years (unless the contractor’s name is earlier removed by order of a disciplinary board).

8.  A contractor may apply to the BA for renewal of his registration: s.8C(1).  The application must be received by the BA not earlier than four months, and not later than twenty-eight days, prior to the date of expiry of his registration: s.8C(2)(c). If a contractor makes an application for renewal within the time limit and pays the renewal fee, then, subject to any decision of the disciplinary board, his registration continues to be in force until his application for renewal is finalised by the BA: s.8C(3).

9.  Section 8C(5) provides as follows.

“ The Building Authority may refuse an application for renewal of registration –

(a) if he is satisfied that the applicant is no longer suitable (for any reason) for registration on the relevant register; or

(b) if the applicant fails to provide relevant information and documentary proof required by the Building Authority including, but not limited to, updated information on matters supplied on previous applications for registration or renewal of registration.”

10.  Section 8E provides as follows.

“ The Building Authority is required to give reasons in writing for a decision not to include, retain or restore a contractor’s name in a register at the time of giving notice of the refusal.”

11.  Section 13A provides that an applicant for registration, renewal of registration or restoration of his name to a register who is dissatisfied with a decision of the BA may appeal to a judge of the Court of First Instance.

12.  Section 8C(4) provides that the BA may seek the advice of the relevant Contractors Renewal Committee (“CRC”) on the renewal of registration.

13.  The establishment of CRCs is provided for in s.8, which provides as follows.

“ (1) The Building Authority is to establish a panel with sufficient members from whom he is to appoint committees to be known as Contractors Registration Committees. The Building Authority may appoint more than one Registration Committee at any one time.

(2) The function of a Contractors Registration Committee is to assist the Building Authority in considering applications for inclusion in a register by –

(a) examining the qualifications of applicants;

(b) inquiring as the relevant Registration Committee considers necessary to ascertain whether an applicant has the relevant experience;

(c) conducting interviews with applicants; and

(d) advising the Building Authority to accept, defer or reject applications for inclusion in the relevant register.

(3) In relation to a Contractors Registration Committee appointed to assist the Building Authority in considering applications for inclusion in a register of general building contractors kept under section 8A(1)(a), the Contractors Registration Committee consists of –

(a) the Building Authority’s representative;

(b) 3 persons, 1 of whom is nominated by each of the Architects Registration Board, the Engineers Registration Board and the Surveyors Registration Board from the lists of authorized persons, registered structural engineers and registered geotechnical engineers;

(c) 3 persons nominated by The Hong Kong Construction Association Ltd;

(d) 1 person nominated by The Hong Kong E & M Contractors’ Association Limited;

(e) 1 person selected by the Building Authority from among persons nominated by such bodies as the Building Authority may think fit.

(3A) In relation to a Contractors Registration Committee appointed to assist the Building Authority in considering applications for inclusion in a register of specialist contractors kept under section 8A(1)(b), the Contractors Registration Committee consists of –

(a) the Building Authority’s representative;

(b) 3 persons, 1 of whom is nominated by each of the Architects Registration Board, the Engineers Registration Board and the Surveyors Registration Board from the lists of authorized persons, registered structural engineers and registered geotechnical engineers;

(c) 3 persons nominated by The Hong Kong Construction Association Ltd; and

(d) 2 persons selected by the Building Authority from among persons nominated by such bodies as the Building Authority may think fit.

(4) A Contractors Registration Committee is required to meet as often as the Building Authority directs.

…

(6) The members of the committee elect the Chairman from the members of the committee other than the representative of the Building Authority.

(7) The Building Authority appoints an officer of the Buildings Department as the secretary of the committee, who is not a member of the committee and may not cast a vote.

(8)   A quorum for a meeting of the committee is the Chairman, the Building Authority’s representative and 3 other members of the committee.”

14.  The BA issues practice notes:

14.1     to registered contractors (“PNRC”) from time to time to promulgate how he applies and enforces the provisions of the BO and its subsidiary regulations as well as other administrative and advisory matters in the administration of the BO relating to registered contractors: see PNRC 1; and

14.2     to authorised persons, registered structural engineers and registered geotechnical engineers (“PNAP”) from time to time to promulgate how he applies and enforces the provisions of the BO and its subsidiary regulations as well as other administrative and advisory matters in the administration of the BO: see PNAP ADM-1.

15.  PNRC 38 deals with the registration of RGBCs and specialist contractors.  Paragraph 10 provides that in considering applications for registration of an RGBC, the BA is to have regard to the qualifications, competence and experience of the specified key personnel of the applicant, namely:

15.1     a minimum of one AS appointed by the applicant to act for the applicant for the purposes of the BO;

15.2     for a corporation, a minimum of one TD, namely, a director from the applicant’s board of directors, for the purpose of ensuring that the works are carried out in accordance with the BO;

15.3     for a corporation which appoints a TD without the required qualification or experience as TD to manage the carrying out of building works and street works, an Other Officer (“OO”) or an AS authorised by the applicant’s board of directors to assist the TD.

16.  The qualifications and experience required of the key personnel are set out in Appendix A to PNRC 38.

17.  Under paragraph 15 of PNRC 38, a person is permitted to take up the roles of both AS and TD of a corporation at the same time provided that he meets the requirements of both.

18.  Under paragraph 27 of PNRC 38 and Appendix L thereto, a holding company and its subsidiary companies may share the same pool of AS, TD and OO, provided that the conditions in Appendix L are met.

19.  Appendix J to PNRC 38 deals with renewal of registration of RGBCs and specialist contractors. It specifies how applications are to be made, and identifies the circumstances in which applications might be referred to the CRC for interview and assessment.  Paragraph 11 provides that if an AS, TD or OO fails his interview, he will not be allowed to act for the contractor.  If as a result of this the contractor has no AS, TD or OO to act for it for the purposes of the BO, the contractor’s renewal application will be refused.

20.  Appendix K to PNRC 38 deals with additions and resignations of AS, TD or OO to a registered contractor, setting out, inter alia, the procedure for registered contractors to follow if they intend to add a new AS, TD or OO.  Paragraph 10 provides that:

“ Prior notification to the BA is required if any of the accepted AS/TD/OO intends to resign from his duties or will cease to be appointed by the contractor. Retrospective notification to the BA will not be accepted.”

21.  Paragraph 10 of Appendix K may be compared with item 11 of the “Frequently asked questions – Registration guides” on the BD’s website:

“ 11. How to notify BD if the appointed AS/TD/OO of registered contractor has resigned or is going to resign?

   Registered contractor shall notify BD in writing on the change of the appointed AS/TD/OO with the effective date of the change together with the company’s name and registration number.  The notification letter should be signed by the AS with his/her full name printed.  If the letter is signed by the other partner or director of the company, it should be stamped with a company chop.  The letter should be sent to BD R&D.”

22.  PNAP APP-138 states that every registered contractor should appoint at least one person, commonly known as the “authorised signatory” (ie. the AS) to act for it for the purposes of the BO.

23.  On 15th December 2022, the Development Bureau of the Government (“DEVB”) announced that it had promulgated strengthened regulating measures over approved contractors which had had “serious incidents” or which had been convicted of violations of site safety legislation.  In particular, it was announced that:

“ On renewal of registration, if an applicant has a record of suspension from tendering for public works or works of the Hong Kong Housing Authority because of factors related to site safety, technical competence and management ability, or a conviction record for offences involving serious labour safety, the application will be referred to the Contractors Registration Committee (CRC) for interviews and assessment, to assist the BD in considering whether to accept, defer or reject the application. To strengthen the regulation of registered contractors, the BD will also consider referring an application to the CRC for interviews and assessment when a registered contractor is involved in serious labour safety incidents at a construction site, regardless of whether the contractor has been convicted.”

24.  The BA’s evidence is that where the BA takes the view that a corporate RGBC may have systemic problems with site safety supervision, arising out of fatal incidents in which the RGBC was involved, enhanced measures for handling the RGBC’s renewal application would be implemented.  In addition to interviewing the AS involved in the fatal incident concerned, the BA and/or the CRC would review the site safety management systems of the RGBC, and the CRC would also interview the TD involved.  If the RGBC had either only one AS or TD, and either failed the CRC interview, the RGBC’s renewal application would be refused.  If the relevant AS or TD involved in the incident failed the interview or had left the RGBC, but the RGBC had other ASs or TDs, then the RGBC could put those other ASs or TDs forward for interview, in the hope of having one AS and one TD successfully passing their interviews.  If none of the ASs or TDs passed the interview then the renewal application would be refused pursuant to paragraph 11 of PNRC 38 Appendix J.  The BA terms this process as the “consecutive interview arrangement”.^[1]

B2.     The chronology

25.  The Appellant has been licensed as an RGBC since 2005.  It has been actively involved in major construction projects in both the private and public sectors.  It is a substantial contractor, with hundreds of employees.  The latest renewal of its registration took place on 28th May 2020.

26.  On 20th July 2020, the 2020 Incident (as termed by the parties) took place.  A carpenter employed by a sub-contractor under the Appellant, working at the construction site of the Hongkong Post Headquarters Building was electrocuted when he accidentally touched an electric cable; he died later that day.  The Appellant says that it was the first time that a fatal incident happened on its sites since it was established in 2003.  It says that although it pleaded guilty to a number of offences, the incident was a mishap brought about by a coincidence of various factors at the time, and the Labour Department withdrew other charges originally brought against it.

27.  On 7th September 2022, the 2022 Incident (as termed by the parties) took place.  A tower crane collapsed at a building site on Anderson Road (“the Anderson Road Project”), causing three fatalities and several injuries.  The Appellant says that the relevant technical aspects of the crane work were carried out by specialist sub-contractors.

28.  On 8th February 2023, the Appellant applied for the addition of Wong Hang Fai (“Mr Wong”) as its TD.

29.  On 24th February 2023, the Appellant applied for the addition of Mak Sidney Kim Leung (“Mr Mak”) as its AS.

30.  On 3rd March 2023, the Appellant applied to the BD under s.8C BO to renew its status as an RGBC, which was due to expire on 7th April 2023 (“the Renewal Application”). In the application:

30.1     the ASs were identified as Chow Kai Pong, Law Chu Wah, Leung Hong Kit, Kan Ho Kai (“Mr Kan”) and Ng Kwok Fai; and

30.2     the TDs were identified as Fung Siu Hung Stanley (“Mr Fung”) and Chow Kai Pong.

31.  By a letter dated 8th March 2023, the BD acknowledged receipt of the Renewal Application, indicating that the BA might seek the advice of the CRC in relation to the renewal of registration.

32.  On 16th March 2023, the Appellant applied for the addition of Mr Mak as its TD.

33.  The last day of the Appellant’s latest registration as an RGBC was 7th April 2023, but the registration thereafter continued in force by virtue of s.8C(3) BO.

34.  By letter dated 11th May 2023, the BA notified the Appellant that upon the advice of the CRC, approval was given for Mr Mak to act as the Appellant’s AS and Mr Wong as its TD.

35.  On 6 September 2023, the BD issued a press release regarding the 2022 Incident.  Amongst other things, it referred to the fact that prosecutions under the BO had been initiated against the Appellant and other parties, that the Appellant’s registration had expired in April 2023, and that as the Appellant had been involved in a fatal construction site incident, its renewal application would be referred to the CRC for interview and assessment according to the enhanced arrangement for regulation of registered contractors that had been earlier introduced, and that the BD would consider the recommendations of the CRC to decide whether to accept or refuse the application.

36.  On 10th October 2023, the 2023 Incident (as termed by the parties) took place.  A worker employed by the Appellant’s sub-sub-contractor, responsible for cable-laying works at a site on To Wah Road, was found unconscious on the ground on site, and subsequently died.  It is believed that he fell from the cable tray installed at approximately four metres above the ground.  The Appellant says that the worker should not have been on the cable tray and indeed that he had been instructed not to climb onto it, and that the accounts of the worker’s colleagues are consistent with the Appellant’s stance.  

37.  The 2020 Incident, 2022 Incident and the 2023 Incident will be referred to below as “the Fatal Incidents”.

38.  Unbeknownst to the Appellant at the time, the BD’s internal minute (“LM1”) came into being on 15th November 2023.  I return to this below.

39.  By an email of 22nd November 2023, the BD asked the Appellant to nominate an AS (in relation to (a) to (d) below) and a TD (in relation to (b) below) to attend an interview and assessment with the CRC in relation to the Renewal Application.  The four relevant items identified in the email were as follows.

“ (a) Conviction and suspension record resulting from [the 2020 Incident];

(b) Incident with fatal record [the 2023 Incident];

(c) Suspension by the Housing Authority on 11 May 2022 related to a project at Tung Chung Area 54;

(d)   Suspension by the Housing Authority on 17 April 2023 related to 4 construction sites (Tai Po Area 9, Tung Chung Area 100, Tuen Mun Area 29 West and Tung Chung Area 54)”

40.  On 23rd November 2023, the Appellant nominated Mr Kan as its AS, and Mr Wong as TD, in response to the BD’s request of the previous day.  Subsequently, the interview for Mr Wong was fixed for 19th December 2023, and the interview with Mr Kan on 31st January 2024.

41.  On 24th November 2023, the Appellant submitted a draft “Safety Improvement Plan for Cable Laying and Fixing at Height”, and a “Safety Improvement Plan for Erection, Alteration, Dismantling and Use of Tower Crane” (“the SIPs”) for the BD’s assessment.

42.  On 1st December 2023, the BA notified the Appellant that upon the advice of the CRC, approval was given for Mr Mak to act as the Appellant’s TD.

43.  On 19th December 2023, Mr Wong was interviewed by the CRC (“the 19.12.2023 CRC”).  It subsequently transpired that Mr Wong failed the interview, having received three “pass” votes and three “fail” votes from the panel of six interviewers, and a further casting vote of “fail” from the chairman of the 19.12.2023 CRC (“Mr Ip”).  This was notwithstanding that earlier on 11th May 2023, approval had been given to Mr Wong to act as the Appellant’s TD, which approval had been given based on Mr Wong’s track records but without an interview.

44.  The interview with Mr Kan had been scheduled for 31st January 2024, but did not take place due to a medical emergency on Mr Kan’s part.  On 2nd February 2024, the BD asked Mr Kan to attend for interview on 8th February 2024 instead.

45.  On 6th February 2024, the Appellant applied to add Mr Leung Chi Kin (“Mr Leung”) as its proposed TD and AS (“the TD/AS Application”).

46.  In a letter of 8th February 2024 to the Registration Unit of the BD, the Appellant referred to the CRC interview with Mr Kan being arranged for that day.  The Appellant explained that Mr Kan would be resigning from the Appellant once the handover of his work to his successor was complete, as a reflection of his accountability as the project manager of the Anderson Road Project (the site of the 2022 Incident).  The letter went on:

“ Although Mr Kan will not be in the position to represent our company as AS, Mr Kan feels morally obliged to attend the upcoming CRC interview to address any questions by the CRC. Mr Kan would also like to take the opportunity to report to the CRC on what significant enhancement on our site safety management system has been implemented and their effectiveness. We admire and respect Mr Kan’s strong sense of responsibility and we are supportive of him attending the CRC even though he will not be in a position to act as AS of our company.

 We should be most grateful if you would put this letter before the CRC for the members’ information.”

47.  The letter was signed by the Executive Manager (Tendering) of the Appellant, but did not bear any company chop.  The letter was passed on to the members of the CRC who subsequently interviewed Mr Kan.

48.  Mr Kan’s interview did not proceed on 8th February 2024 due to reasons relating to the quorum requirement of the CRC.  The interview was rescheduled for 22nd February 2024.

49.  On 22nd February 2024, Mr Kan was interviewed by the CRC (“the 22.02.2024 CRC”).

49.1     It is not disputed that Mr Kan told the CRC that he was resigning from the Appellant. The Respondents’ evidence is that the Secretary of the CRC told Mr Kan that mere indication of resignation in the Appellant’s letter of 8 February 2024 was insufficient and would not be treated as effective, as the Appellant was required to submit to the BA a formal notice of resignation following prescribed requirements.

49.2     It subsequently transpired that Mr Kan failed the interview, having received “fail” votes from the panel of seven interviewers.

50.  On the same day, Mr Fung was also interviewed by the 22.02.2024 CRC.  The Respondents’ evidence is that Mr Fung received five votes of “pass” and two of “fail”.  Accordingly, Mr Fung passed the interview.

51.  By letter dated 28th February 2024 to the Appellant, Mr Kan tendered his resignation, stating that his last day of work would be 30th April 2024.  This was not sent to the BD; the Respondents’ evidence is that they did not know exactly when Mr Kan would be resigning.

52.  On 29th February 2024, the Appellant’s solicitors wrote to BD and Secretary for Development, referring to the TD/AS Application, and saying that they had been given to understand that it was the BD’s practice not to allow any application for addition of a TD/AS whilst an application for renewal of RGBC registration was being processed.  The letter claimed that this lacked legal and rational justification.  It asked the BD to confirm in writing whether it was considering or would consider the TD/AS Application pending the processing of the Renewal Application.

53.  On 20th March 2024, the Appellant submitted a Corporate Safety Management Improvement Report (“CSMIR”) for the BD’s review.

54.  On 11th April 2024, Mr Mak was interviewed by the CRC (“the 11.04.2024 CRC”).  It subsequently transpired that Mr Mak failed the interview, having received three “pass” votes and three “fail” votes from the panel of six interviewers; similarly to the case of Mr Wong, the chairman (again Mr Ip) voted “fail” as the casting vote.

55.  On 11th April 2024, the 2024 Incident (as termed by the parties) took place.  A piling rig toppled at the site of the Anderson Road Project during a routine maintenance check, without causing any injury.  The Appellant’s evidence that this happened during a maintenance inspection and that the suspected cause was a mechanical failure of the piling rig has not been contradicted. The Appellant says that the incident demonstrated the existence and effectiveness of its safety system.

56.  The Appellant says that as at April 2024, the Appellant had only two ongoing projects that were governed by the BO and regulated by the BD and that in respect of both projects, the BD was informed that Mr Kan would be replaced by Mr Mak as the Appellant’s AS.

56.1     By a letter of 11th April 2024, the Authorised Person for a project at Pokfulam Road notified the BD that Mr Mak would act as the nominated AS instead of Mr Kan, effective from 16th April 2024.  A form completed by the Appellant and signed by Mr Kan and Mr Mak giving notice of change of the AS was enclosed.

56.2     By a letter of 16th April 2024, the Authorised Person for certain specified works at Anderson Road notified the BD that Mr Mak would act as the Technically Competent Person (AS) instead of Mr Kan, effective from 16th April 2024.  A revised form relating to the supervision plan of the Appellant as registered contractor, consequent upon this and other changes, was enclosed.

57.  By a letter of 19th April 2024, the Appellant’s solicitors wrote to the BD, asking for a prompt decision in relation to the Renewal Application, noting that the application had been submitted in March 2023 and that Mr Mak’s interview had taken place on 11th April 2024.  The Appellant’s solicitors also referred to the TD/AS Application, and asked for a response to their letter of 29th February 2024, and a speedy decision in relation to this application.

58.  On 30th April 2024, Mr Kan ceased employment with the Appellant.  This was not notified to the BD.

59.  Unbeknownst to the Appellant at the time, the BD’s internal minute of 17th October 2024 “LM3” came into existence at this time.  I return to this below.

60.  On 20th January 2025, the Appellant’s solicitors sent a further chaser to the BD and to the Secretary for Development.  A response by 28th January 2025 was sought, as to (1) whether and when the TD/AS Application would be or had been considered, (2) the current status of the Renewal Application, including the date by which the outcome of Mr Mak’s and Mr Kan’s interviews would be provided, and (3) the reasons for the ongoing delay in processing the Renewal Application.

61.  Unbeknownst to the Appellant at the time, the BD’s internal minute of 12th May 2025 “LM4” came into existence at this time.  I return to this below.

62.  As mentioned, the Renewal Application and the TD/AS Application were dismissed in the 22.05.2025 Decision Letter.  The relevant parts of the letter read as follows.

“ 1. I refer to [the Renewal Application and the TD/AS Application]. I also refer to your letters dated 8 February 2024, 6 March 2024 and your subsequent submission of supplementary information including the Safety Improvement Plans (SIP), the Corporate Safety Management Improvement Report on 24 November 2023 and 20 March 2024 respectively, together with the letters from DLA Piper Hong Kong, who acted on your behalf, dated 29 February 2024, 18 March 2024, 19 April 2024, 20 January 2025 and 1 April 2025.

2. Regarding your renewal application, it was subsequently referred to the Contractors Registration Committee (CRC) for consideration and advice, including assessment of the abilities and competence of the following ASs and TD acting for you for the purposes of the Buildings Ordinance (BO) to understand building works and street works through relevant experience and a general knowledge of the basic statutory requirements:

(i) AS: Mr KAN Ho Kai

           Mr MAK Sidney Kim Leung

(ii) TD: Mr WONG Hang Fai

3. Taking into account the advice of CRC and in accordance with section 8C(5)(a) of the BO, I regret to REFUSE your renewal application as you have not satisfied me that you are suitable for registration on the relevant register. Pursuant to Section 8C(6)(b) of BO, I hereby notify you that I shall remove your name from the register of general building contractor on 20 June 2025.

…

5. Regarding the addition application [the TD/AS Application], since your application for renewal of registration is refused, this is also to inform that your application for addition of a TD cum AS submitted and received by this Department will not be processed.

   ….”

63.  Also on the same day, the BD sent a letter to the Appellant’s solicitors, referring to the latter’s letters of 29th February 2024 and 20th January 2025 regarding the TD/AS Application (“the 22.05.2025 Reply to DLA”).  In relation to the Renewal Application, the BD said that this had been referred to the relevant CRC for consideration, and then the CRC submitted its recommendation to the BA. The letter then continued:

“ Based on the renewal application submitted by [the Appellant] on 3 March 2023, the Safety Improvement Plans and the Corporate Safety Management Improvement Report submitted by [the Appellant] on 24 November 2023 and 20 March 2024 respectively, the safety related conviction record of [the Appellant], and the recommendations made by the CRC, the BA is satisfied that [the Appellant] is no longer suitable for registration on the register of general building contractors. In this connection, the renewal application has been refused today. Thus, the application for addition of a TD cum AS submitted on 6 February 2024 by [the Appellant] will not be considered.”

64.  Also on 22nd May 2025, the Government issued a press release with the statement of the Secretary for Development regarding the BD’s refusal of the Renewal Application (“the Secretary’s 22.05.2025 Public Statement”).  It read, in part, as follows.

“ As a registered general building contractor (RGBC), the registration of ACCL expired in April 2023. It was involved in three serious incidents, including a fatal incident in 2022 involving the collapse of a tower crane at a construction site at Anderson Road, a fatal incident in July 2020 involving the electrocution of a worker at a construction site at Wang Chin Street, and a fatal incident in October 2023 involving a worker falling from height at a construction site at To Wah Road. These incidents resulted in a total of five deaths. The BD referred the renewal application to the Contractors Registration Committee (CRC) for interview and assessment in accordance with the Buildings Ordinance (BO). ... After several rounds of interviews, the CRC was not satisfied that the authorised signatories of ACCL were competent and capable in site supervision and safety management to act on behalf of ACCL for the purpose of the BO, and was not satisfied that the contractor had proper site safety management. After careful consideration of CRC’s recommendation, the BD has decided to refuse ACCL’s application for registration renewal.

…

Ms Linn emphasised, ‘We understand that the decision to refuse the registration renewal may have an impact on the works in progress, but the BD, as the regulatory authority, is required to process registration renewal applications rigorously and professionally in accordance with the BO, which clearly stipulates the factors to be taken into account by the BD. These factors are mainly for assessing whether the registered contractor continues to have the competence, experience, qualifications and suitable appointed persons to act on its behalf in discharging statutory obligations in respect of building works under construction, including building safety. We need to ensure that the system for renewing the registration of registered contractors can play an effective gatekeeping role in maintaining the professional standard of the industry, separating the wheat from the chaff and sending a clear message to the industry and the community, so that the construction industry can continue to develop healthily.’

…

   She supplemented, ‘Refusing the application for renewal of ACCL is only one of the series of follow-up actions taken by the Government following construction site fatal incidents.  In 2023, the BD and the LD instigated prosecutions against ACCL and related individuals under their respective ordinances regarding the collapse of a tower crane on Anderson Road.  The case will be heard in January 2026.  The involved authorised signatory of ACCL was also charged with manslaughter in 2024, which will be heard in July 2025.  As for the other two serious incidents, ACCL and related individuals were convicted and fined under labour ordinances for the 2020 incident, while the 2023 incident will be heard in July 2025.’ ”

65.  The Secretary for Development and the Director also attended a media session regarding the BD’s refusal of the Renewal Application.  At this session, the Secretary for Development made an opening statement (“the Secretary’s 22.05.2025 Opening Remarks”).  The English translation, in part, was as follows.

“ … Today, I am here with the DB to explain the decision made by the Buildings Department (“BD”) under the Buildings Ordinance (“BO”) regarding a building contractor’s application for renewal of registration.  The contractor concerned is Aggressive Construction Company Limited (“ACCL”).

   The ACCL was involved in three serious construction site incidents that occurred in 2020, 2022, and 2023 respectively, resulting in five fatalities.  The registration of ACCL as a General Building Contractor originally expired in April 2023.  After receiving its renewal application, the BD referred the case to the Contractors Registration Committee (“CRC”) for interviews and assessments.  The BD, after taking the CRC’s recommendation into account, decided to refuse the renewal application.

   …

   The BD took a longer time to process this renewal application because the ACCL was involved in multiple serious incidents, requiring thorough consideration of the relevant information submitted by the contractor and the details of the related site accidents.  Furthermore, ACCL also submitted supplementary information multiple times, and the BD had to verify and thoroughly consider the supplementary information and refer them to the CRC to conduct the relevant interviews and carefully assess the competence of the ACCL.  Additionally, as the ACCL raised questions on procedural matters, we need to seek legal advice from the Department of Justice to ensure the procedures are fair, in order and lawful.

   We understand that the decision to refuse the renewal application may have an impact on the works in progress, but as the regulatory authority, the BD is required to process registration renewal applications rigorously and professionally in accordance with the BO, which clearly stipulates the factors the BD has to take into account.  These factors are mainly for assessing whether the contractor continues to have the competence, experience, qualifications and suitable candidates to act on its behalf in discharging statutory obligations in respect of building works, including building safety.  This demonstrates that the system is designed to ensure that only competent, safety‑conscious, and law-abiding contractors can be renewed.  We need to ensure that the system for renewing the registration of registered contractors can play an effective gatekeeping role in maintaining the professional standard of the industry, separating the wheat from the chaff and sending a clear message to the industry and the community, so that the construction industry can continue to develop healthily. …”

66.  At this media session, the Director also made an opening statement (“the Director’s 22.05.2025 Opening Remarks”).  The English translation, in part, was as follows.

“ …The contractor registration of Aggressive Construction Company Limited (ACCL) expired in April 2023. As ACCL was involved in three serious site safety incidents resulting in five deaths, including a fatal incident in July 2020 involving the electrocution of a worker at a construction site at Wang Chin Street in Kowloon Bay, a fatal incident in September 2022 involving collapse of tower crane at a construction site at Anderson Road, and a fatal incident in October 2023 involving a worker falling from height at a construction site at To Wah Road, Jordan, the Buildings Department (BD) referred ACCL’s renewal application to an independent body, the Contractors Registration Committee (CRC) for interview and assessment in accordance with the Buildings Ordinance (BO).

   The CRC is established under the BO with no less than five members in each panel for interviews and assessment in each case.  For the renewal application of ACCL, the interviews were conducted by six to seven members, consisted of Authorized Persons (APs) from relevant registration boards, registered professionals, contractors’ associations, and the representative from the BD.  After several rounds of interviews, the CRC was not satisfied that the Authorized Signatories (AS) of ACCL were competent and capable in site supervision and safety management to act on behalf of ACCL for the purpose of the BO, and was not satisfied that ACCL had proper site safety management.  They found that AS of ACCL lacked knowledge of site safety and the awareness of responsibility for site supervision was apparently insufficient.  The site safety management system was also deemed insufficient.  After careful consideration of the CRC’s recommendations, the BD considered that ACCL was no longer suitable for registration on the relevant register, leading to the decision to refuse the renewal application. …”

67.  In response to a question at the media session, the Director answered as follows (“the Director’s 22.05.2025 Answer”).

“ The contractor concerned was involved in three serious construction site safety incidents, which required referral to the Contractors Registration Committee (“CRC”) for interviews and assessments.  This process focused on whether the contractor had appropriate mechanisms in place to prevent occurrence of serious safety accidents.  During the assessment, it was found that the knowledge of construction site safety awareness of the authorized signatories concerned was insufficient, and the sense of responsibility of supervising the site was also inadequate.  At the same time, there were deficiencies in the overall management system for implementing safety measures.

   Overall speaking, the CRC concluded that their relevant capabilities and competence were insufficient for continuing to act on behalf of the contractor in carrying out statutory duties under the Buildings Ordinance and ensuring the safety of building works.  Therefore, the CRC recommended the BD to reject the registration renewal application.”

68.  There were also various remarks by the Secretary for Development at the media session in response to a reporter’s question (“the 22.05.2025 Media Session Transcript”).

“ On the first [question], regarding how we would prevent the same authorised signatories or what we call the technical directors, who are the responsible persons under the registered contractor, from being appointed to other construction companies. I think on this you can be rest assured that we have a system to prevent that from happening without going through the gatekeeping of the Buildings Department. Taking the present case as an example, the director has just now explained that the authorised signatories and the technical directors of this company have failed the interviews. So they will be removed from the list. If the same persons would like to work for other construction companies as authorised signatories and technical directors, they will have to go through the gatekeeping by the Buildings Department. So if they cannot go through, then they cannot go through. They can’t be appointed by other construction companies in that capacity.

   As regards your second question, whether a parent company and a subsidiary company will be interrelated or affected whenever we take action against one.  Our current system of deregistration, disciplinary action and prosecution focus on the entity.  Whichever is the entity that is our target, we focus on them.  So for today, we are talking about Aggressive Construction Company Limited, that is the target that we have for this deregistration exercise.  We won’t be penalising the parent company or any related subsidiaries of the company penalised, because that will not be fair.  What we will focus on is to make sure that, as I have explained just now, the authorised signatories and technical directors responsible and who have failed in the exercise, will not be too readily appointed by other construction companies, because of the gatekeeping system.”

B3.     Documents subsequently disclosed

69.  In Chan 2nd, which was filed on 22nd July 2025 for the purpose of resisting the Appellant’s appeal in these proceedings, the following internal documents were disclosed by the Respondents.

B3.1     BD’s Internal Minutes

70.  There was LM1, BD’s internal minute of 15th November 2023.

70.1     Paragraph 1 referred to the Renewal Application.  It mentioned the 2022 Incident and the 2023 Incident.

70.2     Paragraph 2 referred to the refusal on 18th October 2023 of the renewal application made by the Appellant’s sister company Aggressive Construction Engineering Limited (“ACEL”), and the fact that the ASs and TDs who were “pooled” or shared between the two companies, and who had failed in their interviews representing ACEL, had been removed as acting for the Appellant.  This meant that there were two ASs and two TDs remaining as acting for the Appellant in the Renewal Application.

70.3     Paragraph 5 made a number of recommendations as regards the handling of the Renewal Application, such as requiring a safety improvement plan for the 2022 Incident and the 2023 Incident; a consecutive interview arrangement for the ASs Mr Kan and Mr Mak, and the TDs Mr Fung, Mr Wong and (subject to approval to act being granted) Mr Mak.

71.  There was LM3, another BD internal minute of 17th October 2024.

71.1     Paragraph 2 stated that three rounds of interviews had been conducted on 19th December 2023, 22nd February 2024 and 11th April 2024.  All the interviewed ASs and TD failed the CRC interviews.  As a result, the renewal application would be refused.

71.2     Paragraph 3 recorded that on the day when the final interview was conducted (11th April 2024), a piling rig toppled at the Anderson Road Quarry site (the 2024 Incident).  The issue of whether an additional interview regarding the incident was necessary for the TD in question was raised.  Reference was made to the incident report within Folio 8.

71.3     Paragraph 4 stated that given that this incident had occurred at the same site as the 2022 Incident, the BD was reviewing the SIP submitted by the contractor to determine whether further strengthening measures would be required for the time period before removal of the contractor.  The review would include an analysis of the incident report in conjunction with the SIP to identify any indications of major deficiencies in the SIP.  The paragraph concluded “In this connection, the announcement of the results will be held pending until the finalisation of the aforementioned review.  Your agreement is sought, please”.

71.4     LM3 was considered by a number of officers within the BD.  On 7th November 2024, the Director annotated it with “Pls proceed as recommended.”

72.  There was LM4, a further BD internal minute of 12th May 2025, prepared by Mr Victor Chan, Chief Officer/Technical Services, who has also given affirmation evidence for the purpose of this appeal.  It read, in part, as follows.

“ LM1 and LM3 are relevant.

…

3. [The Appellant was] involved in three fatal incidents (from commencement of its current registration to 10.10.2023), which are listed below [the 2020 Incident, the 2022 Incident and the 2023 Incident were then referred to].

Other non-performance records are presented at Part B of [Folio 3]. Statistical analysis in Part C of [Folio 3] indicates that the average number of labour safety related conviction record of [the Appellant] within the specified period is above average.

4. Pursuant to BO s.8C(4), it was decided to seek the advice of the CRC on the renewal application. … Three rounds of CRC interviews were conducted… The results are as follows [the minute then set out the results of the CRC interviews of Mr Wong who failed as TD (on 19th December 2023), Mr Kan who failed as AS and Mr Fung who passed as TD (on 22nd February 2024), and Mr Mak who failed as AS (on 11th April 2024)].

Apart from all of the two AS (ie KAN and MAK) and the first TD (ie WONG) failed their interviews, the CRCs also considered that the Safety Improvement Plans (SIP) and the Corporate Safety Management Improvement Report (CSMI[R]) submitted by [the Appellant] were not adequate and the safety management system of the [Appellant] should be improved.

5. From the 3 fatal incidents as listed in para.3 above, the tower crane incident is relating to building structure efficiency that mostly under the ambit of the BO. [The Legal Services Section] has instigated prosecution action against [the Appellant] and its AS (KAN) for offence under BO s.40(2B)(a). Based on the investigation carried out by [the Site Monitoring Section] at [Folio 8], the competency and management structure of the Appellant should be carefully reviewed.

6. Based on the registration renewal process for [the Appellant], the following are noted:-

i. Within the processing period, a fatal incident happened on 10.10.2023 (see para.3(iii) [the 2023 Incident]).

ii. There are 2ASs being appointed by [the Appellant], and both had been interviewed by CRC but failed. (see para.4)

iii.  BA Representative (BA Rep), who represented BA participating CRC, interviewed 2 ASs and 2 TDs.  3 out of 4 BA’s Rep voted that the interviewees failed.  [Folio 3]

iv. In the morning of the 3rd round interview (see para.4(iii)), an incident occurred in Anderson Road site [the 2024 Incident]. A piling rig toppled inside site boundary at the vicinity of the hoarding with no report on the injury or death.

v. The number of labour safety conviction records of [the Appellant] is above average. (see [Folio 3] Part C)

vi. The CSMI[R] established safety improvement measures on limited aspects without an overview on building works with potential risk. Some observations on the deficiency of the CSMI[R] are noted and marked at [Folio 3].

7. DLA Piper (solicitor of [the Appellant]) submitted [the letters of 29th February 2024 and 20th January 2025]. In view of the facts and findings as stated in paras. 4, 5, & 6 above; [the Appellant’s] SIP and CSMI[R] were considered inadequate by the CRCs as mentioned in para.4 above; and all the AS supporting its renewal of registration had failed in the CRC interviews, it is considered that [the Appellant] is no longer suitable for registration pursuant to BO s.8C(5). As due consideration of [the Appellant’s] suitability for registration has been made by CRC and BA, and [the Appellant’s] renewal application is to be refused, processing the application for addition of TD cum AS is not needed. …

…

11. In consideration of paras. 5 & 6 above and pursuant to BO s.8C(5)(a), it is recommended to refuse the application for renewal of registration submitted by [the Appellant] on 3.3.2023 on the ground that the applicant is no longer suitable for registration on the GBC register.

12. In connection with paras. 7, 8, 9, 10 & 11 above, draft result letter and reply letter are prepared … for [Director of Buildings’] clearance before dispatch, please. …”

73.  LM4 was considered by a number of officers within the BD.  On 21st May 2025, the Director annotated it with “AGREED TO REFUSE”.

B3.2     The CRC meetings

74.  The minutes of meeting of the 19.12.2023 CRC were disclosed.  They were recorded using a two-page standard form.

74.1     The first page identified the candidate being interviewed as Mr Wong, put forward as TD of the Appellant.  In the final column, titled “Recommendation with grounds”, was handwritten “R(d)”.

74.2     According to the key on the second page, “R” meant “Refuse”, and “(d)” was a reference to the ground of refusal being “the ability of the [candidate] to understand building works and street works through relevant experience and a general knowledge of the basic statutory requirements under BO section 8B(2)(d) and his competence under BO 8B(8)(a) or 8B(8)(b), OR the competence of the technical director / other officer under section 8B(8)(a) or 8B(8)(b).”

74.3     The second page also noted that the assessment forms of individual members were kept for record purposes under separate cover.

74.4     The six members of the 19.12.2023 CRC and the CRC Secretary signed against their printed names.

74.5     Towards the bottom of the second page, a horizontal line was printed across the page.  Beneath it was printed “Decision by the Building Authority”.  Beneath that was printed “I agree to the recommendations from the CRC recorded overleaf”, against which was a signature of a BD officer, signing for the BA.

75.  The assessment forms for the interview were disclosed.  Mr Ip (the chairman of the 19.12.2023 CRC) marked on Mr Wong’s assessment form “not enough site safety management”.^[2]

76.  There were then minutes of meeting of the 22.02.2024 CRC.  They were again recorded on a two-page standard form.

76.1     The first page identified the candidate being interviewed as Mr Kan, put forward as AS of the Appellant, and Mr Fung, put forward as TD of the Appellant.  In the final column, titled “Recommendation with grounds”, was handwritten “R(d)” against Mr Kan and “A” (indicating “Accept”) against Mr Fung.

76.2     The standard form on the second page was the same as that for the 19.12.2023 CRC.

76.3     The seven members of the 22.02.2024 CRC and the CRC Secretary signed against their printed names.

76.4     As with the 19.12.2023 CRC, at the bottom of the second page the words “Decision by the Building Authority” were printed, and then followed the words “I agree to the recommendations from the CRC recorded overleaf”, against which was a signature of a BD officer, signing for the BA.

77.  There were assessment forms for the interview.  The chairman of the 22.02.2024 CRC (Mr Tam) noted on the assessment form the observations of “no clue as to safety natural causes” and “個人責任嚴重不足” (seriously lacking in personal responsibility).^[3]

78.  There were minutes of meeting of the 11.04.2024 CRC.  They were recorded on a two-page standard form.

78.1     The first page identified the candidate being interviewed as Mr Mak, put forward as AS of the Appellant.  In the final column, titled “Recommendation with grounds”, was handwritten “R(d)”, signifying “Refusal” on the same grounds as the refusal for Mr Kan.

78.2     The six members of the 11.04.2024 CRC and the CRC Secretary signed against their printed names.

78.3     As before, at the bottom of the second page the words “Decision by the Building Authority” were printed, and then followed the words “I agree to the recommendations from the CRC recorded overleaf”, against which was a signature of a BD officer, signing for the BA.

79.  There were also assessment forms for the interview.  The chairman of the 11.04.2024 CRC (again Mr Ip) marked on Mr Mak’s assessment form “safety improvement is not enough” and “the safety management system should be improved”.^[4]

B3.3     Document RC-5

80.  As earlier mentioned, on 6th February 2024, the Appellant had made the TD/AS Application, seeking to add Mr Leung as its proposed TD and AS.

81.  Chan 2nd explained that it was “the BA’s general practice that an applicant’s application for additional AS or TD (where submitted after the date of expiry of registration) would not be processed until the registration renewal application was accepted”.

82.  It was further said that the practice was recorded in an internal document known as “RC-5”, which was issued in November 2015, although the practice had been adopted prior to the issue of RC-5.  RC-5 was disclosed. It read, in part, as follows.

“ …For BA2C application for approval of additional key personnel (including AS, TD and OO) submitted after the original date of expiry of registration, it will be put on hold until the application for renewal has been finalized by the CRC. However, if the registration will be renewed without referral to CRC or regardless of CRC’s recommendation, the application for approval of additional key personnel will be processed parallel to the application for renewal registration to facilitate the smooth operation of RC and to avoid prolonging the processing time for the application for additional key personnel.”

83.  The BA’s practice, as explained in document RC-5, will be referred to as “the Unpublished Policy”.

84.  There is no dispute that the Unpublished Policy has not, in the words of Chan 2nd, been “formally announced”.  However, the Respondents say that the BA and the BD have never had any intention to hide it from the public, and that people in the trade should be “well aware” of it.

C.     APPLICABLE LEGAL PRINCIPLES

C1.     Principles relating to the conduct of the appeal

85.  The present appeal is governed by s.13A BO, which provides that an applicant for registration, renewal of registration or restoration of his name to a register who is dissatisfied with a decision of the BA may appeal to a judge of the Court of First Instance; the judge may confirm, reverse or vary the decision of the BA.

86.  Such appeals are to be conducted by way of rehearing: RHC O.55 r.3(1).

87.  In hearing the appeal, the court has a broad power; it is not confined to consideration of points of law alone; it may consider the merits of the case on appeal.  See Tsang Tak Wai v Building Authority (No.2) [2019] 1 HKLRD 801 at [39].

88.  On the other hand, although the appeal is conducted by way of a rehearing, it is not a retrial.  The court’s role will be to look into the original decision to see if there are mistakes such that the appellate court should intervene.  In the exercise of discretion, different judges, tribunals and boards may reasonably have different views, but it does not mean that the appellate court can replace the original views of the original tribunal with its own views.  On the contrary, the appellate court must give proper weight to an earlier decision.  An appellant must be able to point out that the tribunal erred on a point of law, departed from an applicable principle, misapprehended the facts, took into account irrelevant matters, or exercised its discretion without any reasonable basis whatsoever before the appellate court would intervene.  See WKP v Chiu Chung Yee Charles [2018] 3 HKLRD 232 at [21] (Lam VP, as he then was).

89.  Under O.55 r.7(5), the court may give any judgment or decision or make any order which ought to have been given or made by the body appealed against, and make such further or other order as the case may require, or may remit the matter with the opinion of the court for rehearing and determination.

C2.     The approach to the BA’s professional and technical judgment

90.  There is no dispute that the registration and renewal system for RGBCs is to ensure that only qualified and competent general building contractors are permitted to be registered under the BO.

91.  Under s.8C(5)(a) BO, the BA has a wide discretion to refuse an application for renewal of registration of an RGBC: he may refuse it “for any reason”.

92.  Where an impugned decision involves an assessment calling for professional or technical judgment or expertise, the court will be diffident about interfering.  See Sin Chung Yin Ronald v Dental Council of Hong Kong (2016) 19 HKCFAR 528 at [49] (Ribeiro PJ).

93.  It is not the function of the court in the present appeal to decide the question of whether, objectively speaking, the Appellant is suitable for continued registration.

D.     GROUND 1ST-1:^[5] ADEQUACY OF REASONS

94.  The Appellant’s first ground of appeal in relation to the 1st Decision is that no, or no adequate, reasons were given for the decision.

D1.     The statutory provisions

95.  The starting point is that whilst s.8C(5)(a) BO confers upon the BA the power to refuse an application for renewal of registration if he is satisfied that the applicant is no longer suitable for registration “for any reason”, at the same time, s.8E BO requires that he give reasons in writing for such a decision at the time of giving notice of the refusal.

96.  In my judgment, as a matter of plain wording of the statutory provisions, the mere fact that the BA is not satisfied about the suitability of an applicant cannot in itself stand as a reason for the refusal.  Otherwise, s.8E would be otiose.  If the BA refuses an application, it is necessarily implicit that he is not satisfied about the applicant’s suitability for registration, so that a mere written notification of refusal would already sufficiently indicate that the BA is not satisfied.  What s.8E explicitly requires is not just a written notification of refusal, or even notification of the fact of non-satisfaction, but an identification of the reasons for the BA’s non-satisfaction at the same time as the notification of refusal.

97.  In other words, if the BA is to refuse an application for renewal of registration, the effect of ss.8C(5) and 8E is that:

97.1     there needs to be a reason why the BA is not satisfied;

97.2     the BA needs to give this reason in writing; and

97.3     the reason needs to be given at the time when the notice of refusal is given.

D2.     The rationale for the requirement to give reasons

98.  It is useful to bear in mind the rationale for the requirement to give reasons.  In Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority (1997-98) 1 HKCFAR 279 at 290D-H, Li CJ said (in the context of a case where there was no express statutory duty to give reasons):

“ It has been said that a duty to give reasons imposes an additional burden on the decision maker. Probably, it would involve some additional work. But decision makers who are under such a duty should not regard it as a burden. They should view the duty positively as it brings various benefits. The tribunal should certainly take a positive attitude towards it.

   First, it would impose desirable intellectual discipline and concentrate attention on the relevant issues.  It would thus assist in ensuring that any decision is made on proper grounds and contribute to the effective disposal by the tribunal of its work.  Secondly, reasons would assist in demonstrating to the parties that the tribunal has carried out its task properly and would enable them to decide on the appropriate course of action in the case at hand, including whether to appeal or apply for judicial review.  It would also provide guidance in the future to the community and persons concerned in this area.  Publishers as well as the law enforcement and prosecuting authorities would have a better understanding of the standards as applied by the tribunal and would be in a better position to make their own decisions accordingly.  Thirdly, the reasons given by the tribunal will promote and enhance consistency in its decision making and assist the law enforcement and prosecuting authorities.  I would observe that broad consistency in approach is important.  Fourthly, the giving of reasons would demonstrate to the community that the tribunal is functioning properly and this would engender public confidence.”

99.  In Capital Rich Development Ltd v Town Planning Board [2007] 2 HKLRD 155,^[6] Stock JA said at [97]:

“ Sound public administration requires that when reasons are required or are provided for an administrative decision, they should be clear as well as sufficient to the circumstances. The provision of adequate and clear reasons, where reasons are required by law, is a function of sound administration because transparency is more likely to promote confidence in public administration than is opacity, and also because the very requirement to provide clear reasons against the background of the particular issues raised itself encourages a disciplined approach to the issues at hand. But, most obviously, the requirement is based on fairness, so that the person or body adversely affected by a decision should have an adequate indication of the reasoning process, enabling him to know whether the decision-maker has addressed his grievance and whether there may be a basis for challenging the decision. So too clarity and sufficiency of reasons enable a supervisory court in judicial review better to assess the legality of a decision under challenge. See Fordham, Judicial Review Handbook (4th ed., 2004) paras.62.1.5 to 62.1.9.”

100.  In other words, in general, the requirement to give reasons has benefits for the decision-maker, the parties in the particular case concerned, and the community in general, by:

100.1   imposing desirable discipline and focus, so that a decision is made on proper grounds;

100.2   promoting fairness and consistency in decision-making;

100.3   enabling an adversely affected party to decide on the proper course of action, such as whether to appeal or apply for judicial review;

100.4   enabling an appellate or supervisory court to better assess the legality of a decision under challenge;

100.5   providing future guidance;

100.6   promoting public confidence in the decision-maker by demonstrating that the decision-making process is functioning properly.

101.  In the case of an application for renewal of registration under s.8C BO, the duty under s.8E BO to give reasons is particularly important, as the BA may refuse an application if he is satisfied that the applicant is no longer suitable to remain registered for any reason.  Given such a wide discretion in the making of the decision, the accompanying duty to give reasons is an important means of promoting disciplined and proper decision-making, and enabling an unsuccessful applicant to decide on what course of action he should take.  Furthermore, given that a refusal to renew an RGBC’s registration may have far-reaching consequences, not only for the contractor but also its employees and any projects on which the contractor is working at the time of the decision, the s.8E BO duty to give reasons is particularly important.

D3.     What constitutes adequate reasons

102.  In Capital Rich Development Ltd, Stock JA said at [97] that reasons “should be clear as well as sufficient to the circumstances”.  At [98] he went on to expand on the meaning of “sufficient”:

“ What is sufficient will depend on the legal framework within which the body takes the decision and upon the case at hand. Sometimes a brief statement of reasons will suffice, because in context no more needs to be said. Sometimes, although the words employed in the reasons articulated might have been more clearly stated, a common sense approach in context of the reasons, or of the particular history, as a whole will readily reveal what was obviously intended and the courts should be loathe to permit scrutiny of reasons as if they constituted a statutory instrument. 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. …”

103.  In Ng Shek Wai v Hong Kong Institute of Certified Public Accountants [2019] HKCFI 2439 at [42], Au J (as he then was) said that in an application for judicial review consisting of a challenge to the adequacy of reasons given, the essential question to be determined by the court was whether, when viewed objectively in the specific factual context of the case and the information and materials that were objectively known to the applicant as at the material time, the reasons provided were adequate to enable the applicant or a reasonable person in his position to understand the decision being made.

104.  Such information and materials may include the prior interactions or exchanges between the parties: Wong Chau Ming v Secretary for Civil Service [2024] 1 HKLRD 200 at [80(9)] (Coleman J).

105.  Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced: South Bucks District Council v Porter (No.2) [2004] 1 WLR 1953 at [36] (Lord Brown).

106.  Reasons should not be mere conclusions, which do not show that the decision-maker has addressed the issues raised and why he came to his decision: Oriental Daily Publisher Ltd at 292J.  Counsel for the Respondent, Mr Rimsky Yuen SC (appearing with Mr Anthony Chan SC and Mr Justin Lam), submitted that submitted that this particular observation of Li CJ (that the reasons in that case were inadequate by reason of being conclusory) should not be elevated to a principle, as the observation was only made in the context of that case, where the tribunal was a quasi-judicial body acting pursuant to statute, and was prefaced by the comment that “the reasons are inadequate to discharge the tribunal’s duty to give reasons in the circumstances of this case” (292J).  I do not agree.

106.1   Assessment of the adequacy of reasons in any case must of course be made in the context of the facts of that particular case.  It does not thereby follow that any observations made by Li CJ were specific to the facts of the case before the CFA and could not be of general application.  On the contrary, Li CJ’s observation at 289D that the duty to give reasons could be put on a wider ground as arising under the common law, rather than mere implication as a matter of statutory construction, provides some indication that his observations regarding the duty to give reasons were not confined to the specific facts of the case before the CFA.

106.2   It is a matter of common sense that a conclusory statement cannot double up as the reason for the conclusion.

106.3   In any event, in the context of the present case, s.8C(5)(a) BO expressly distinguishes between a conclusion (that the BA is not satisfied as to the suitability of an applicant for renewal) and the reason therefor. Section 8E BO similarly distinguishes between the BA’s decision not to retain a contractor’s name in the Register and his reason therefor.  There is therefore no room for the argument in the circumstances of the present case that a mere conclusory statement can serve as a reason for non-renewal.

107.  In R (Oakley) v South Cambridgeshire District Council [2017] 1 WLR 3765, it was held that reasons should have been given by a local authority’s planning committee when it decided to grant planning permission which was not consistent with a report produced by the authority’s planning officer.  It was argued on behalf of the authority that it was apparent from a letter sent by the authority to the Secretary of State that the planning committee thought that the grant of planning permission could be justified on the basis of very special circumstances.  The Court of Appeal rejected this argument.  Sales LJ (at [82]) considered that the duty to give reasons could not be satisfied in that case by resorting to a “paperchase”; members of the public were entitled to expect the duty to give reasons to be satisfied in a reasonably clear fashion, and not to have to look beyond any statement of reasons specifically given for the decision or the planning officer’s report; they could not reasonably be expected to “cast around to look for other documents in the planning file to try to piece together the reasoning of the planning authority”.

108.  In Oriental Daily Publisher Ltd, Li CJ at 291D said:

“ 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.”

109.  In R v Westminster City Council, ex p Ermakov [1996] 2 All ER 302, the statute in question provided that if the local housing authority was satisfied that an applicant had become homeless intentionally, it should at the same time notify the applicant of its reasons.  The authority notified the appellant that it considered that the appellant had become homeless intentionally, and stated the reason for this decision.  On an application for judicial review, the authority’s evidence was that the true reason for the decision was not that expressed in the decision letter, but a different reason.  Having reviewed a number of authorities, Hutchison LJ held at 315h to 316g that:

“ (2) The court can and, in appropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should, consistently with Steyn LJ’s observations in Ex p Graham, be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lacking in clarity. These examples are not intended to be exhaustive, but rather to reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction. Certainly there seems to me to be no warrant for receiving and relying on as validating the decision evidence – as in this case – which indicates that the real reasons were wholly different from the stated reasons. It is not in my view permissible to say, merely because the applicant does not feel able to challenge the bona fides of the decision-maker’s explanation as to the real reasons, that the applicant is therefore not prejudiced and the evidence as to the real reasons can be relied upon. This is because, first, I do not accept that it is necessarily the case that in that situation he is not prejudiced; and, secondly, because, in this class of case, I do not consider that it is necessary for the applicant to show prejudice before he can obtain relief. Section 64 requires a decision and at the same time reasons; and if no reasons (which is the reality of a case such as the present) or wholly deficient reasons are given, he is prima facie entitled to have the decision quashed as unlawful.

(3)     There are, I consider, good policy reasons why this should be so.  The cases emphasise that the purpose of reasons is to inform the parties why they have won or lost and enable them to assess whether they have any ground for challenging an adverse decision.  To permit wholesale amendment or reversal of the stated reasons is inimical to this purpose.  Moreover, not only does it encourage a sloppy approach by the decision-maker, but it gives rise to potential practical difficulties.  In the present case it was not, but in many cases it might be, suggested that the alleged true reasons were in fact second thoughts designed to remedy an otherwise fatal error exposed by the judicial review proceedings.  That would lead to applications to cross‑examine and possibly for further discovery, both of which are, while permissible in judicial review proceedings, generally regarded as inappropriate.  Hearings would be made longer and more expensive.”

110.  The ex p Ermakov approach was applied by the Court of Appeal in Lok Man Fai Felix v Architects Registration Board [2019] 2 HKLRD 745, an appeal pursuant to the Architects Registration Ordinance (Cap.408) from a decision of an inquiry committee.  The statutory provision in question required that any order made by the inquiry committee to remove a registered architect from the register should be served on the architect together with the committee’s reasons.  At [39], Lam VP (as he then was), giving the judgment of the court, held that since the statutory scheme expressly provided for reasons to be given at the time of the decision, the constraint as to the admission of evidence to explain the reasons for an administrative decision in the context of judicial review as laid down in ex p Ermakov should equally apply.^[7]

111.  Counsel for the Appellant, Mr Benjamin Yu SC (appearing with Mr Thomas Wong), highlighted the analysis by the Court of Appeal in Lok Man Fai Felix, especially at [47], where Lam VP observed that as the inquiry committee had simply failed to give any reasons for its findings, it would be wholly wrong for the court to seek to reconstruct what those reasons might have been.

112.  As the authorities show, whether reasons are adequate in any particular case will depend on the circumstances of that case, and must be considered against the legal and factual context of the case.  Nonetheless, for the purposes of the present case, I derive the following general propositions from the authorities cited to me:

112.1   the reasons given should be read with common sense and in context, rather than construed like a statute;

112.2   reading the reasons in context includes taking into account the information and materials that were objectively known to the applicant at the material time, and recognising that they were addressed to parties well aware of the issues involved and the arguments advanced;

112.3   the reasons should show why the decision-maker has come to its decision;

112.4   there may not be any need to address every single issue, but the reasons should show that the issues that arise for serious consideration have been considered;

112.5   reasons should not be mere conclusions;

112.6   it should not be necessary to have to guess whether or not a particular matter was taken into account;

112.7   it should not be necessary to conduct a paperchase or to review internal documents of the decision-maker in order to piece together its reasoning;

112.8   where no reasons have been given, the court should not seek to reconstruct what they might have been by reference to the papers; and

112.9   the function of any evidence which is admitted to explain the decision-maker’s reasons should generally be elucidation rather than fundamental alteration or contradiction.

D4.     Whether requirement to give reasons satisfied in the present case

D4.1    Reasons as set out in the 22.05.2025 Decision Letter

113.  The BA says that adequate reasons were provided in the 22.05.2025 Decision Letter, having regard to the context of the case.^[8]

114.  Paragraph 2 of the 22.05.2025 Decision Letter referred to the fact that the Renewal Application had been referred to the CRC for consideration and advice, including an assessment of Mr Kan and Mr Mak as AS, and Mr Wong as TD.

115.  Paragraph 3 read: “Taking into account the advice of CRC and in accordance with section 8C(5)(a) of the BO, I regret to REFUSE your renewal application as you have not satisfied me that you are suitable for registration on the relevant register.”  This paragraph set out:

115.1   what was taken into account,

115.2   which statutory provision was relied upon by the BA in refusing the Renewal Application,

115.3   the BA’s decision to refuse the Renewal Application, and

115.4   the BA’s conclusion that the Appellant had not satisfied him that it was suitable for registration.

116.  The paragraph did not set out any reason for the decision.  To say that the Appellant had not satisfied the BA that it was suitable for registration was no more than to set out the BA’s conclusion that he was entitled, under s.8C(5) BO, to refuse the Renewal Application; it did not explain why the BA reached that conclusion.  Whilst I readily accept that the BA did not need to give lengthy reasons, not even brief reasons were given.

117.  Thus on the face of the letter, at least, the reasons for the 1st Decision (to refuse the Renewal Application) were not given.

D4.2    Reasons as understood from other materials

118.  In these proceedings, the BA has filed two rounds of evidence, and written skeleton submissions, seeking to explain the 1st Decision.  I now turn to consider these.

D4.2.1 The 22.05.2025 Reply to DLA

119.  In Chan 2nd paragraph 73, it was said that it was “clearly stated” in the 22.05.2025 Reply to DLA that “based on” (1) the Renewal Application, (2) the SIPs and CSMIR submitted by the Appellant, (3) the “safety related conviction record” of the Appellant, (4) the CRC recommendation, the BA was satisfied that the Appellant was no longer suitable for registration.

120.  At best, this letter identifies the four matters taken into account in making the 1st Decision.  It does not identify the reasons for the 1st Decision.  At the very least, the first of the four matters referred to (the Renewal Application) cannot be a reason for refusing the 1st Decision.

121.  The letter is not entirely consistent with the 22.05.2025 Decision Letter, which did not suggest that any “safety related conviction record” had been taken into account.  (The 22.05.2025 Decision Letter in fact also did not say that the Renewal Application, SIPs and CSMIR had been taken into account, but it did at least mention them.)

D4.2.2 The various public statements

122.  The Respondents’ evidence also referred to various public statements made on the day of the 22.05.2025 Decision Letter.  It is said that these also contained or identified the reasons for the 1st Decision.  They were:

122.1   the Secretary’s 22.05.2025 Public Statement;^[9]

122.2   the Director’s 22.05.2025 Opening Remarks;^[10]

122.3   the Secretary’s 22.05.2025 Opening Remarks;^[11]

122.4   the Director’s 22.05.2025 Answer;^[12] and

122.5   the 22.05.2025 Media Session Transcript.^[13]

123.  The 22.05.2025 Media Session Transcript, most of which has been extracted in Section B above, does not in fact refer to any reasons for the 1st Decision.

124.  The relevant parts of the other four public statements were as follows.

124.1   The Secretary’s 22.05.2025 Public Statement referred to (1) the Appellant being involved in three serious incidents resulting in a total of five deaths, (2) the CRC not being satisfied that the Appellant’s authorised signatories were competent and capable in site supervision and safety management to act on behalf of the Appellant for the purpose of the BO, (3) the CRC not being satisfied that the Appellant had proper site safety management, (4) the BD considering the CRC’s recommendation and then refusing the Renewal Application.

124.2   The Director’s 22.05.2025 Opening Remarks referred to (1) the Appellant being involved in three serious site safety incidents resulting in five deaths, (2) the CRC not being satisfied that the Appellant’s ASs were competent and capable in site supervision and safety management to act on behalf of the Appellant for the purpose of the BO, (3) the CRC not being satisfied that the Appellant had proper site safety management, (4) the ASs lacking knowledge of site safety and having insufficient awareness of responsibility for site supervision, (5) the Appellant’s site safety management system being insufficient, (6) the BD considering the CRC’s recommendations and then refusing the Renewal Application.

124.3   The Secretary’s 22.05.2025 Opening Remarks referred to (1) the Appellant being involved in three serious construction site incidents resulting in five fatalities, (2) the BD taking the CRC’s recommendation into account and then refusing the Renewal Application.

124.4   The Director’s 22.05.2025 Answer referred to (1) the Appellant being involved in three serious construction site safety incidents, (2) the finding during the CRC assessment that the ASs’ knowledge of construction site safety awareness was insufficient and their sense of responsibility of supervising the site was inadequate, (3) there being deficiencies in the overall management system for implementing safety measures, (4) the CRC concluding that the ASs’ capabilities and confidence were insufficient for their continuing to act on behalf of the Appellant and ensuring the safety of building works, (5) the CRC therefore recommending the BD to reject the Renewal Application.

125.  Whilst these statements referred to various matters that were apparently taken into account by the BD or the BA and, whilst there was a large degree of overlap between the statements as to what these matters were, none of them in fact indicated what the BA’s actual reason for the 1st Decision was.  As Mr Yu pointed, saying that something was taken into account in coming to a decision does not mean that it was necessarily the reason for the decision: a judge might say that counsel’s submissions were taken into account, yet not accept one or more of those submissions.

D4.2.3 The BD’s Internal Minutes

126.  In Chan 2nd at paragraph 67, it was said that “the BA’s reasons for refusing the Renewal Application have been set out and/or recorded in the BD’s internal minutes, ie. LM1…, LM3 and LM4”.  However, these documents were only disclosed in Chan 2nd, filed on 22nd July 2025, for the purpose of these proceedings, and not at the time of the 22.05.2025 Decision Letter, when notifying the Appellant of the 1st Decision.  The Respondents are not suggesting that these reasons were separately identified in the 22.05.2025 Decision Letter.  (They do say that in the circumstances of the case they were reasons that must have been clear to the Appellant when receiving the 22.05.2025 Decision Letter, but that is a different point which will be addressed below.)  For present purposes, the point is that even if the reasons were contained in LM1, LM3 and LM4 (“the BD’s Internal Minutes”), they could not thereby stand as the reasons required under s.8E BO, that is, given at the time of the refusal of the Renewal Application.

127.  A further problem with the BD’s Internal Minutes is that it is not at all straightforward to say that the reasons for the 1st Decision were set out in them.  LM1 did not in fact contain any reasons; LM3 set out one reason; and LM4 set out a series of matters which were said to be reasons, but for some of these, the term “reason” does not seem to be an entirely appropriate description.

127.1   LM1 could not realistically have set out the BA’s reasons for refusing the Renewal Application, since it was written on 15th November 2023, which was over eighteen months before the 1st Decision was made, and even before the CRC interviewed Mr Wong, Mr Kan, Mr Fung and Mr Mak.  As a matter of fact, it did not contain any such reasons.  It referred to the 2022 and 2023 Incidents, the fact that there were two ASs and two TDs remaining in the Appellant for the Renewal Application, and recommended various steps for handling the Renewal Application (such as requiring SIPs and the interview arrangements).

127.2   LM3 was prepared by an officer of the rank “Senior Professional Officer / Registration” seven months before the 22.05.2025 Decision Letter.  It referred to the Appellant’s ASs and TD having failed the CRC interviews, and said “As a result, the renewal application will be refused accordingly.”  It asked for agreement to withhold announcing the results pending review of the 2024 Incident.  The (then) BA noted on the minute “Pls proceed as recommended”. Mr Yu submitted that this was merely an agreement to withhold the announcement. But even if one more generously reads this as the BA’s adoption of the view that the Renewal Application should be refused because the Appellant’s ASs and TD failed their interviews, such a reading would suggest that this was the sole reason for the 1st Decision.  It is not clear how this fits in with LM4.

127.3   LM4 was prepared by Mr Victor Chan.  In paragraph 11, he stated that “In consideration of paras. 5 & 6 above … it is recommended to refuse the [Renewal Application] on the ground that the applicant is no longer suitable for registration on the GBC register.  The BA noted on the minute “AGREED TO REFUSE”.  Again, Mr Yu submitted that the BA at most was expressing agreement to refusing the Renewal Application, but not necessarily an adoption of any of the reasons put forward by Mr Chan.  Again, one can more generously read it as an agreement to both Mr Chan’s recommendation and his reasons.  Those reasons were said to be the matters in paragraphs 5 and 6 of the minute, but these matters were manifold and different to what had appeared in LM3 (it was also unclear whether some of the matters were actually reasons or not):

127.3.1     the fact of the 2020, 2022 and 2023 Incidents in which there were fatalities;

127.3.2     the fact that a prosecution had been instituted against the Appellant and its AS Mr Kan in relation to the 2020, 2022 and 2023 Incidents;

127.3.3     the view that the competency and management structure of the Appellant should be carefully reviewed;

127.3.4     the fact that a fatal incident happened within the processing period;

127.3.5     the failure of the Appellant’s ASs at their CRC interviews;

127.3.6     the fact that three out of four BA representatives at the CRC interviews had voted to fail the interviewees;

127.3.7     the fact that in the morning of the third round interview, the 2024 Incident had occurred;

127.3.8     the “above average” number of labour safety conviction records of the Appellant;

127.3.9     the view that the CSMIR had established safety improvement measures regarding limited aspects without an overview about building works with potential risk.

128.  Leaving aside LM1, and the attempt to reconcile the myriad of reasons or possible reasons in LM4 with LM3, one can next attempt to follow the reasoning process which appears from the face of LM4.

128.1   According to paragraph 11, the recommendation for refusal was based on a consideration of paragraphs 5 and 6.

128.2   The thrust of paragraph 5 appears to be a suggestion that “the competency and management structure of the Appellant should be carefully reviewed”, based on an investigation reported within Folio 8.  It is not clear whether it is being suggested that there is in fact an issue with competence or management structure.  

128.3   Paragraph 6 notes a numbers of matters.  Paragraph 6(i) refers to the fact that the 2023 Incident occurred within the processing period.  Nothing is said about the Appellant’s role or fault in this incident.  It is therefore not clear what significance is being placed by Mr Chan on the 2023 Incident.

128.4   Paragraph 6(ii) and 6(iii) refer to the failure of the two ASs and one TD in their CRC interviews and the fact that the BA’s representative voted “fail” on three out of four occasions.  

128.5   Paragraph 6(iv) refers to the fact that the 2024 Incident happened in the morning of the last of the CRC interviews.  Nothing is said about the Appellant’s role or fault in this incident.  Again, it is not clear what significance is being placed by Mr Chan on the 2024 Incident.

128.6   Paragraph 6(v) refers to the Appellant’s “number of labour safety conviction records” being “above average”.  It cites Folio 3 for this point, but the Respondents have not disclosed Folio 3.  It is unclear what labour safety conviction records were taken into account, and to what extent they were taken into account.  In this regard, it is notable that when the Appellant’s evidence in August 2025 attempted to guess at what the “labour safety conviction records” might have been, and set out statistics to refute the statement in LM4,^[14] the Respondents’ evidence (having sought an adjournment to deal with this, amongst other pieces of evidence in the Appellant’s affirmations) was not to identify the “labour safety conviction records” in question or to answer the statistics put forward, but instead to shy away from the point by saying that statistics “was only one of the aspects” taken into account, and that “statistics have limitations”.^[15]  

128.7   Paragraph 6(vi) refers to the CSMIR, commenting that this established safety improvement measures on limited aspects without an overview of building works with potential risks, and noted that some observations regarding the deficiencies of the CSMIR were marked in Folio 3-19.  The nature of the deficiencies is not set out in the paragraph.

128.8   It is therefore difficult to say with any certainty what the reasons for the 1st Decision, set out by Mr Victor Chan in LM4 and adopted without elaboration by the BA, may have been.

129.  It does not help that in Ho 1st, the Director did not actually identify which of the matters identified in LM4 constituted the reasons for the 1st Decision.  He said that he endorsed LM4, after “having carefully considered the matter” and “having taken into account all relevant considerations”.^[16]  He then said that the contents of LM4 are “self‑explanatory” and that the 1st Decision was “fully justified”.^[17]  However, none of these statements actually identify the Director’s reasons for making the decision.  To say that a decision is justified is not the same thing as identifying what that justification is.  Furthermore, Chan 2nd says that LM4 was circulated for discussion within the BD, and he names a number of officers involved in the discussions.  The nature of the “discussions” is unclear, but insofar as there were substantive exchanges between the officers beyond what is recorded in LM4,^[18] no evidence has been given of these, so it is unclear which, if any, of the matters in LM4 was adopted by the Director as his reason for “agreeing to refuse” the Renewal Application.  I will return to Ho 1st below.

130.  The Respondents’ skeleton placed much emphasis on LM4, yet did not clearly identify what the reasons for the 1st Decision, as appearing from LM4, were.  Paragraph 3.1 said that LM4 “contemporaneously summarised” the reasons and that there were “ample and proper reasons” to support the 1st Decision, which “included” the failure of two ASs and one TD in their interviews, and the inadequacy of the SIPs and CSMIR.  Paragraph 38 said that LM4 was a “contemporaneous record of the BA’s considerations taken and the reasons for the 1st and 2nd Decisions”, and then proceeded to go through the various paragraphs within LM4, including but not limited to paragraphs 5 and 6; thus the Fatal Incidents were mentioned, the consultation of the CRC was mentioned, the deficiencies of the SIPs and CSMIR were mentioned, the view that there should be a review of the competency and management structure of the Appellant was mentioned, and so on; but what exactly were the reasons appearing from LM4 was not identified.  Furthermore, the submission that the various matters in LM4 constituted the reasons for the 1st Decision does not sit well with paragraph 90 of the skeleton, which definitively stated that there were two reasons for the 1st Decision: first, that the BA was not satisfied with the SIPs and CSMIR, and second, that Mr Kan, Mr Mak and Mr Wong failed their interviews, so that the Appellant was left with no AS who had passed a CRC interview.  Paragraphs 5 and 6 of LM4 covered much more than these two matters.

131.  Having reviewed the BD Internal Minutes, in my judgment, the BD Internal Minutes do not fall into that category of evidence that can be relied on by a decision-maker for the purpose of (subsequently) elucidating his reasons.  They do not contain a straightforward statement of the BA’s reasons.  At best, one has to try to piece together the reasoning of the BA from these documents (which is an exercise that should not have to be carried out in the first place), but it is not possible to do this with great confidence or certainty, as illustrated by the fact that the Respondents’ own skeleton submissions do not clearly identify the reasons said to be summarised in LM4, and that the reasons for the 1st Decision identified by the submissions are much narrower than the matters covered in LM4.

D4.2.4 The Director’s affirmation

132.  In Ho 1st, the Director said that:

132.1   he endorsed LM4 which recommended refusing the Renewal Application (paragraph 3(1));

132.2   the 2020, 2022 and 2023 Incidents were plainly relevant matters that were taken into account in considering the Renewal Application (paragraph 9);

132.3   he took into account the scope of the CRC interviews conducted, the assessment results and remarks of the CRC members, the Appellant’s involvement in the 2020, 2022 and 2023 Incidents, its records of fatalities, suspension and conviction records, the SIPs and the CSMIR, the views of the CRC regarding the ability and competence of the two ASs and the TD, and “therefore” accepted the CRCs recommendations that the two ASs and the TD were unsuitable to act on behalf of the Appellant (paragraph 22);

132.4   the 1st Decision was “fully justified” because of the CRC’s views of the Appellants’ ASs, and the fact that none of the ASs had passed the CRC interviews, so that there was no suitable person to act on behalf of the Appellant; and as the Appellant had failed to adequately address its deficiency in site safety supervision and safety management through the SIPs and/or CSMIR and/or other means (paragraph 25).

133.  Again, whilst a host of matters was listed as having been taken into account, the actual reason(s) for the 1st Decision was not clearly identified.

134.  The fact that a matter was taken into account in making the 1st Decision but that it did not necessarily constitute a reason for the decision is illustrated by Ho 1st paragraph 25, where the Director said that the 1st Decision was fully justified because of various matters, but did not refer to the 2020, 2022 and 2023 Incidents as being such matters, even though he had earlier said that these were plainly relevant matters that were actually taken into account.

135.  It is further illustrated by Ho 1st paragraph 26, where the Director referred to the labour safety related conviction record and statistical analysis in LM4, and statistics referred to by the Appellant, and then goes on to say that:

“ For the avoidance of doubt and insofar as may be necessary, statistics was only one of the aspects which had been taken into account in the process. Statistics have limitations, since (among others) the numbers do not reveal the details, causes etc of the accidents. In considering the Renewal Application, the BA adopt a holistic approach in considering all relevant circumstances.”

136.  This leaves the reader wondering whether and to what extent any statistics (such as the records of fatalities and suspension and conviction records referred to earlier in Ho 1st as having been taken into account) constituted a reason for the 1st Decision.

D4.3    Reasons as understood in context

137.  The Respondents say that when “viewed against the proper context, the reasons stated in the [22.05.2025 Decision] Letter are adequate in the circumstances and [the Appellant] should have no doubt as to why the 1st Decision was made.”^[19]  They further say that having regard to (1) the correspondence between the Appellant and the BA leading up to the 1st Decision, and (2) the fact that the Appellant was an “informed audience” with industry experience and involvement in the renewal process, the Appellant could not have been left in any doubt as to why the Renewal Application was refused, “namely that the BA was not satisfied with the SIP and CSMIR and Mr Kan, Mr Mak and Mr Wong failed the CRC interviews, with the result that ACCL was left without any AS that passed a CRC interview”.^[20]

138.  At the hearing of the appeal, Mr Yuen formulated the two reasons (which were said to appear from the 22.05.2025 Decision Letter) a little differently, as being:

138.1   that the CRC recommended that the Appellant’s registration should not be renewed, as could be seen from the minutes of the CRC meeting setting out the assessments of Mr Kan, Mr Mak and Mr Wong; and

138.2   that, having regard to s.8C(5)(a) and s.8B(2)(a), (b) and (d) BO, the BA took the view that the Appellant’s SIPs and CSMIR were not satisfactory.

139.  Mr Yuen submitted that when read in context, an objective and informed reader would have understood from the 22.05.2025 Decision Letter that these were the two reasons for the 1st Decision.  I do not agree.

140.  First, for the reason relating to Mr Kan, Mr Mak and Mr Wong or the CRC’s advice:

140.1   the letter did not indicate what the CRC’s advice about renewal was, or say that Mr Kan, Mr Mak and Mr Wong had failed their CRC interviews.  Nor could the Appellants have understood this from any prior “context”, as the BA had not given any prior indication as to what the CRC had advised, or how the three candidates had performed in their interviews.  Mr Yuen emphasised in his oral submissions that when assessing the adequacy of a decision maker’s reasons, one should take into account the information and materials known to the applicant at the material time (citing Ng Shek Wai).  However, all that the Appellant knew was that the BA might seek the advice of the CRC, and that the CRC had interviewed the three candidates, but they had not been told the advice or the interview results, so the Appellant could not have guessed what the advice or interview results might be.  As regards the interviews, for Mr Mak and Mr Wong, it will be recalled that half of the interviewers marked them “pass”, and half marked them “fail”, so it would not necessarily have been obvious to them, based on what happened at the interview, that they had, in fact, failed.  For Mr Kan, it should also be remembered that the Appellant had told the BA and the CRC that he was not representing the Appellant as its AS, so even if (as I explain below) the BA was entitled to and did assess Mr Kan as the Appellant’s AS, from the Appellant’s perspective, they had not put Mr Kan forward on this basis, and this forms some part of the context in which the letter needs to be read;

140.2   the letter similarly did not say that the CRC had recommended that the Appellant’s registration should not be reviewed.  It said that the CRC’s advice had been taken into account, but there was no indication as to what that advice was (for example, whether it related only to the interviews (and if so which), or whether it also related to the SIPs and CSMIR (LM4 mentioned the CRC’s views about these but the letter did not), and which part of it the BA agreed with and relied on as a reason for the 1st Decision.

141.  Second, for the reason relating to the SIPs and CSMIR, Mr Yuen submitted that since under s.8C(5)(a) BO the BA could refuse an application for renewal of registration if he was satisfied that an applicant was no longer suitable for registration, and since under s.8B(2)(a), (b) and (d), a new applicant for registration had to satisfy the BA about various matters, it must have been obvious that having considered the SIPs and CSMIR, the BA was not satisfied that the Appellant could reach the requisite statutory standards.  However:

141.1   it is undisputed that the deficiencies in the SIPs and CSMIR were not put to the Appellant, whether at the CRC interviews or otherwise.  That being the case, the Appellant could not have known, merely from the fact that the 22.05.2025 Decision Letter referred, by way of introduction, to the SIPs and CSMIRs and other letters and materials as having been submitted by the Appellant, that a reason for the 1st Decision was that having considered the SIPs and CSMIR, the BA was not satisfied that the Appellant could reach the requisite statutory standards;

141.2   in any event, this would still be a conclusory statement of non‑satisfaction, rather than a reason.

142.  The argument that the BA’s reasons for the 1st Decision were apparent if the Appellant would only read the 22.05.2025 Decision Letter in context was developed further in the Respondents’ written skeleton.  The Respondents said that having regard to (1) the correspondence between the Appellant and the BA leading up to the 1st Decision, and (2) the fact that the Appellant was an “informed audience” with industry experience and involvement in the renewal process, the Appellant could not have been left in any doubt as to why the Renewal Application was refused.  The matters relied on in support of this submission^[21] were:

142.1   the BA’s acknowledgment on 8th March 2023 of receipt of the Renewal Application and indication that the BA might seek the advice of the CRC pursuant to s.8C(4) BO;

142.2   a letter of 27th September 2023 requesting submissions of various forms, such as “Original Form RR-2: Declaration of Conviction / Disciplinary / Suspension Records by Contractor”, said to “facilitate the assessment” of the Renewal Application;

142.3   a letter of 14th November 2023 requesting the submission of the SIPs and an undertaking that the Appellant would continue to implement the SIPs and conduct an independent audit to ensure implementation, again said to “facilitate the assessment” of the Renewal Application.  It was said that since the letter stated that the documents were “for the consideration of the BA and the CRC during the interview/assessment” and since an interview was not a requirement of a renewal application, as the Appellant would have known from its previous renewal applications, the Appellant should thereby have known that the BA’s attention was on the three Fatal Incidents;

142.4   an email of 22nd November 2023 asking the Appellant to nominate for interview and assessment by the CRC (1) an AS in relation to the 2023 Incident and three other instances of conviction and/or suspension records, and (2) a TD in relation to the 2023 Incident;

142.5   the Appellant’s solicitors’ letter of 24th November 2023 submitting that it would be inappropriate to have an interview at that stage given that investigations and legal proceedings were ongoing regarding the 2022 and 2023 Incidents;

142.6   the BA’s letter of 18th December 2023 referring to the statutory function of the CRC and the BA’s power to refuse an application for renewal of registration under s.8C(5) BO, stating that the Appellant had been involved in two occasions of suspension from tendering in connection with the 2022 and 2023 Incidents which required further consideration regarding the suitability of the Appellant’s registration; in the circumstances, the Renewal Application would be referred to the CRC for interview and assessment;

142.7   subsequent exchanges to inform the Appellant of the time, date and scope of the interviews.

143.  Whilst this correspondence may have indicated that the BA had referred the Renewal Application to the CRC and that the CRC would be conducting an interview and assessment, including reviewing various documents provided by the Appellant, so that the Appellant would have been aware of the broad areas of inquiry, it did not indicate what reasons might have been relied on by the BA for refusing the Renewal Application.  As mentioned, it is undisputedthat the deficiencies in the SIPs and CSMIR were not put to the Appellant.  It can hardly be said that the Appellant should have been in “no doubt” that such deficiencies constituted a reason for the 1st Decision when they were not mentioned in the 22.05.2025 Decision Letter, and when the deficiencies were not put to the Appellant, simply because the correspondence had asked the Appellant to provide copies of the SIPs (but not the CSMIR) for the BA and the CRC to consider and to undertake to comply with it.

144.  I agree with Mr Yu that the present case is a far cry from Wong Chau Ming, where the lengthy and repetitive correspondence with the applicant, prior to the decision to terminate his employment, had made it clear that it was the applicant’s failure to comply with the requirement to provide a declaration (that he would (inter alia) uphold the Basic Law and bear allegiance to the HKSAR) that had led to the Government considering termination of the applicant’s employment: see [83] to [84].

145.  Mr Yuen further submitted that the Appellant would have been aware of PNRC 38, which at Appendix J identified the persons required to attend CRC interviews, outlined the scope of CRC interviews, and emphasised that whether a particular representative was required to attend an interview and the scope of such an interview would depend on the circumstances of each case and the BA’s and CRC’s discretion.  Furthermore, the Appellant’s representatives would have been aware of what topics were in fact covered at the interviews which took place.  The submission was therefore that the Appellant should have known that the CRC took the view that its representatives’ answers at the interviews were unsatisfactory.

146.  Whilst the Appellant (or its interviewees) may have had some idea of how the interviews went, the Appellant was not actually told of the result of the interviews.  As already mentioned, Mr Mak and Mr Wong each received three “pass” votes and three “fail” votes (leaving aside the casting votes), so it is difficult to say that the Appellant should have known that these interviews were unsatisfactory, and from the Appellant’s point of view, Mr Kan had not been put forward as its AS.

147.  Furthermore, it cannot be said that the correspondence or knowledge about the CRC interviews assisted in putting the reasons given in the 22.05.2025 Decision Letter beyond doubt when that letter did not in the first place actually state any reasons.

D4.4    “At most, reasons were inadequate”

148.  Mr Yuen submitted that at most, it could be said that the reasons for the 1st Decision were inadequate, but not that no reasons had been given.  I agree with Mr Yu’s submission that where, as is the case here, there is a statutory duty to give reasons, the duty is to give reasons which are adequate to enable the court to consider the lawfulness of the decision.  Cf. Ex p Ermakov at 311h to 312f.  That would seem to me to be the purpose of s.8E BO.

149.  Accordingly, the scope for allowing subsequent evidence to explain the 1st Decision is limited: Lok Man Fai Felix at [39].  In any event, even if it could be said that the reasons for the 1st Decision were merely inadequate, so that it is permissible for the reasons to be elucidated by reference to other materials such as the BD Internal Minutes, the various public statements, or the Respondents’ affidavit evidence, as analysed above, these materials do not in fact provide elucidation of the reason(s) for the 1st Decision.

150.  Mr Yuen also submitted that the reasons could not have been inadequate, since the Appellant was nevertheless able to lodge its appeal and set out grounds of appeal.  I note however that the grounds of appeal, as initially advanced in the Notice of Originating Motion, did not identify the two reasons which Mr Yuen described as appearing from the 22.05.2025 Decision Letter.

D4.5    Breach of duty to give reasons

151.  Given the foregoing, it is my judgment that the BA was in breach of its duty under s.8E BO in that he failed to give adequate reasons for the 1st Decision.  The reasons were not sufficiently stated so as to enable the court to consider the lawfulness of the 1st Decision (or to enable the Appellant to clearly identify for the purpose of its appeal the reason for its non-renewal).  Whilst the BA did not need to give lengthy reasons, the 22.05.2025 Decision Letter did not, even when read in context and taking into account what the Appellant knew at the time, sufficiently identify the BA’s reasons for the 1st Decision.  It merely stated the conclusion that the BA was not satisfied that the Appellant was suitable to continue to remain on the Register, without explaining why.  Disclosure of the BD’s Internal Minutes in these proceedings is not an answer: the Appellant should not have had to conduct a paperchase through the BA’s internal documents in order to piece together what the reasons may have been (and indeed to initiate an appeal in order to obtain disclosure of the documents).  In any event, these documents, together with the other evidence filed by the Respondents, rather than elucidating the reasons for the 1st Decision, have in fact reinforced the impression that the making of the 1st Decision was not approached with the discipline and focus which would have produced clearly identifiable reasons for the decision.

D5.     The consequences of inadequate reasons

152.  The parties were in dispute as to the consequences that flow from a finding that reasons given for a decision are inadequate.

152.1   Mr Yu submitted that where a statute requires the giving of reasons at the time of a decision, and either no reasons or wholly deficient reasons are given, then the applicant is prima facie entitled to have the decision quashed or overturned for being unlawful.

152.2   Mr Yuen submitted that:

152.2.1     as the current proceedings are an appeal and not an application by way of judicial review, the Appellant has to show that the 1st Decision was so irrational and outrageous that no reasonable person could have come to it; if there is material to support the 1st Decision, then the court should not interfere;

152.2.2     even if the reasons for the 1st Decision are inadequate, the Appellant bears the burden of showing that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.  If an applicant cannot demonstrate that he could have done something to improve the situation or his chance of success if given fuller reasons, then he has not suffered prejudice to warrant the court’s intervention;

152.2.3     even if relief were to be granted, the appropriate relief would be an order of mandamus to compel the decision-maker to give proper reasons, rather than to quash the decision altogether.

D5.1    “There were reasons to support the 1st Decision”

153.  The Respondents’ skeleton said that “there were ample and proper reasons to support the 1st Decision”, that the BA was “fully entitled” to be satisfied that the Appellant was no longer suitable to remain on the Register, and that “there were proper reasons to ground the BA’s professional and subjective opinion that [the Appellant] was no longer suitable to remain registered”.^[22]  As Mr Yu pointed out at the hearing, this did not meet the Appellant’s complaint, which is that the actual reasons for the 1st Decision were not identified.  I have already indicated my view that it would be wrong to approach the matter on the basis that there were various reasons which could have supported the 1st Decision, and then to seek to reconstruct what the BA’s actual reasons were: Lok Man Fai Felix.

154.  In response, Mr Yuen in his oral submissions argued that even if the 22.05.2025 Decision Letter failed to give adequate reasons for the 1st Decision, it was nevertheless the case that there were circumstances to justify it.  Since the present proceedings were an appeal rather than an application for judicial review, the court was not confined to considering whether the BA had followed the correct procedure of giving reasons, but also whether, on the merits, the 1st Decision was justified (citing WKP).  In that regard, the Respondents relied on the BD Internal Minutes and the Fatal Incidents.  Mr Yuen submitted that the court did not need to resolve the parties’ disputes regarding these matters: for example, the court did not need to resolve whether the Appellant’s or the Respondents’ view of the Fatal Incidents was correct.  The court could simply note that since the question of whether a contractor was sufficiently qualified to be placed on the Register was a technical matter involving questions of professional judgment, the Appellant had failed to show that the 1st Decision was so irrational and outrageous that no reasonable person could have made it.

155.  I agree with Mr Yu that this cannot be an answer to a complaint of a breach of s.8E BO.  If the BA failed to give reasons for a decision as required by s.8E BO, it cannot be an answer to say that there were nevertheless good reasons for the decision, so that the BA should be in the same position as if he had given reasons.  That would render s.8E BO otiose.

156.  I further agree with Mr Yu that it cannot be the case that in order to succeed on an appeal under s.13A BO, an applicant complaining of a breach of s.8E BO not only has to show that the BA erred by not giving reasons (or adequate reasons) for a decision, but also that there could be no rational reason for the decision.  If an applicant has shown that the BA erred by not giving reasons, he will have shown an error of law justifying the court’s intervention.  If the BA seeks to argue that nevertheless, there should not be any intervention because there were good reasons for the decision, the burden lies on the BA to demonstrate this.

157.  In the present case, both parties agree that the court cannot, and should not, resolve the disputes of fact arising in the present case.  Take the Fatal Incidents as an example.  The Appellant claims that objective figures show that over the last fourteen years, the fatality rate at its sites compares favourably to that of a number of major contractors, whereas the Respondents claim^[23] that the Fatal Incidents evidence a systemic issue with the Appellant’s safety management.  The facts surrounding the Fatal Incidents, and what, if anything, they show about the Appellant’s safety management, are not for investigation in this appeal.  The consequence of this is that the BA is unable to demonstrate that despite failing to give adequate reasons for the 1st Decision, there are circumstances, on the facts, that nevertheless justify it having been made.

D5.2    Whether the Appellant needs to show prejudice

158.  It will be recalled that in ex p Ermakov, Hutchison LJ held at 315j-316b that:

“ … Certainly there seems to me to be no warrant for receiving and relying on as validating the decision evidence – as in this case – which indicates that the real reasons were wholly different from the stated reasons. It is not in my view permissible to say, merely because the applicant does not feel able to challenge the bona fides of the decision-maker’s explanation as to the real reasons, that the applicant is therefore not prejudiced and the evidence as to the real reasons can be relied upon. This is because, first, I do not accept that it is necessarily the case that in that situation he is not prejudiced; and, secondly, because, in this class of case, I do not consider that it is necessary for the applicant to show prejudice before he can obtain relief. Section 64 requires a decision and at the same time reasons; and if no reasons (which is the reality of a case such as the present) or wholly deficient reasons are given, he is prima facie entitled to have the decision quashed as unlawful.”

159.  It will also be recalled that this constraint on considering evidence tendered by the decision-maker to validate his decision was approved by the Court of Appeal in Lok Man Fai Felix at [39].  In so doing, Lam VP (as he then was) also agreed with the reason given by Hutchison LJ for the constraint, namely that it was not necessary for the applicant to show prejudice before he could obtain relief, since if no reasons or wholly deficient reasons were given, he was prima facie entitled to have the decision quashed as unlawful.

160.  Mr Yuen submitted that it was incorrect to suggest there was any general proposition of universal application that where there is a statutory duty to give reasons, and no reasons or wholly deficient reasons were given, the applicant was prima facie entitled to have the decision quashed as unlawful without showing prejudice, since in Lok Man Fai Felix, Lam VP went on to say at [40]:

“ 40. In Barke v SEETEC Business Technology Centre Ltd, supra, at [35], Dyson LJ said the Ermakov approach had not been universally applied even in the context of judicial review. He also endorsed the judgment of Richards J in R (Richardson) v North Yorkshire County Council [2004] 1 WLR 1920 at [33] highlighting that the consequences of a failure to give reasons depend very much on the statutory context and the particular circumstances of the case.”

161.  Mr Yuen also relied on Chan Yan Cheong v Research Grants Council of University Grants Committee [2023] 1 HKLRD 808, where Chu VP at [94] said:

“ 94. The relevant legal principles, which are not in dispute, have been summarised at [60] to [65] of the judgment as follows:

…

[61] The applicant bears the burden of showing that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision: South Buckinghamshire District Council v Porter (No.2) [2004] 1 WLR 1953, §36, Lord Brown of Eaton-under-Heywood. …”

162.  However, in Chan Yan Cheong, the summary of the principles was not disputed (even though, as Mr Yuen pointed out, the Court of Appeal considered at [96] whether as a matter of fact the applicant demonstrated prejudice).  Where a court assumes a proposition of law to be correct without addressing its mind to it, the decision of that court is not binding authority for that proposition: R (Kadhim) v Brent Housing Board [2001] QB 955 at [31] to [38].

163.  Moreover, as Mr Yu pointed out, the reason why prejudice was a consideration in the authority cited in Chan Yan Cheong, namely South Bucks District Council, was because it was a reasons challenge in the planning context (as Lord Brown stated at [35]).  The discussion at [27] to [30] regarding the need to show prejudice concerned a challenge (in another case) under s.245 of the Town Planning Act 1971, now s.288 of the Town Planning Act 1990.  Section 245(4)(b) of the 1971 Act and s.288(5)(b) of the 1990 Act provided that in a challenge to certain governmental orders or actions under the (respective) Acts, the court could, if satisfied either that the order or action in question was ultra vires “or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation thereto”, quash the order or action.  In other words, the requirement for the applicant to show substantial prejudice in order to obtain the relief of having the order or action quashed was prescribed by statute.^[24]  There was no such statutory requirement in Chan Yan Cheong.

164.  Still further, Chan Yan Cheong was not a case in which there was an express statutory duty to give reasons.  As Hutchison LJ in ex p Ermakov explained, situations in which there is a statutory duty to give reasons at the time when the decision is made stand in a different class: the failure to give reasons (or the giving of wholly deficient reasons) is in itself a breach of the statute, so an applicant does not need to show prejudice before being entitled to seek relief.

165.  Leung Sze Ho Albert v Bar Council of Hong Kong Bar Association [2016] 5 HKLRD 542, also relied on by the Respondents, may similarly be distinguished.  In that case, Poon JA (as he then was) at [73] said:

“ The applicant had not shown he could have done anything to improve the situation or his chances of getting the approval even if given fuller reasons. He had not been prejudiced as contended.”

166.  Again, there was no argument over, or determination of, the issue of whether the applicant needed to show prejudice.  It will be seen from [70] that the argument simply proceeded on the basis of South Bucks District Council.  The case also was not one in which there was an express statutory duty to give reasons.

167.  In oral submissions, Mr Yuen also referred to Wong Chau Ming for the proposition that an applicant needs to show prejudice if he is to succeed in a reasons challenge.  However, the point did not arise for consideration in that case as the applicant simply failed to show that reasons were not given in the first place.  I do not agree with the submission that simply because the proposition was mentioned in this case (where its application did not arise) and in Chan Yan Cheong (where it was not disputed), it has thereby become part of the common law.

168.  Other cases show that in the absence of a specific statutory requirement to show prejudice, an applicant for judicial review does not need to show prejudice by the unlawful act complained of before he is entitled to relief.  See R (Wall) v Brighton and Hove City Council [2005] 1 P&CR 33 at [63] to [65], in which Sullivan J contrasted the difference between the position under the s.288(5)(b) of the Town Planning Act 1990 and the general law.  Mr Yu cited a number of other examples to show that an applicant complaining about the failure to give reasons generally does not need to show prejudice, such as Oriental Daily Publisher Ltd and Brabazon-Drenning v United Kingdom Central Council for Nursing Midwifery and Health Visiting [2001] HRLR 6 at [28] to [29] (Elias J).

169.  In the light of the above, I accept Mr Yu’s submission that in the circumstances of the present case, there is no need for the Appellant to show that it has suffered any prejudice before it can seek relief.  Section 8E BO expressly requires the BA to give written reasons at the time when it decides not to include, retain or restore a contractor’s name in the Register.  Failure to give reasons would amount to a breach of this requirement.  Furthermore, s.13A BO does not require a contractor to show prejudice when appealing against the BA’s decision.

D5.3    The appropriate relief

170.  The next question is what relief may be granted for a failure to give reasons or sufficient reasons.

171.  The Respondents say that it would be an “over-reaction” to quash the 1st Decision, and that the Appellant should at most be allowed to obtain an order of mandamus requiring the BA to give proper reasons for the 1st Decision.  Reliance was placed on Hong Kong Canadian International Hospital Foundation Ltd v Secretary for Justice, unreported, HCAL 131/2006, 4th May 2007, where at [101] A Cheung J (as the Chief Justice then was) did not accept the proposition that whenever there was a failure to give reasons, the proper remedy must be to quash the relevant decision.  That was a case in which there was no duty to give reasons, and where the matter was essentially a private one between the government / Chief Executive and the former landowner, relating to re-entry for the latter’s breach of lease conditions (see [94] and [95]).  It was therefore quite different to the present case where the BA maintains the Register in its public capacity and is required to give reasons under s.8E for its decisions not to include, retain or restore a contractor’s name in the Register, and such reasons are required to be given at the time of giving notice of the refusal.

172.  In any event, I agree with Mr Yu that simply asking the BA to supply reasons for the 1st Decision would not be appropriate.

173.  The consequences of a failure to give reasons depends on the statutory context and the particular circumstances of the case.  One relevant consideration is whether there is a statutory duty to give reasons.  See Lok Man Fai Felix at [39] to [41].

174.  Where there is a duty to give reasons, the usual remedy for breach of the duty is an order quashing the unreasoned decision, rather than an order to require provision of the reasons.  “The former remedy is usually deemed preferable as it reflects the purpose of reasons to encourage focused decision-making and avoids the risk of reconstruction of reasons after the decision”: De Smith’s Judicial Review, 9th ed., paragraph 9-151.  Hong Kong Canadian International Hospital Foundation Ltd does not suggest otherwise, as it was not a case where there was a duty to give reasons.

175.  However, the court may nevertheless refuse to grant relief if it would be futile to do so, for example because the decision-maker would inevitably make the same decision. Under O.55 r.7(7), the court is not bound to allow an appeal on the ground of misdirection (or improper admission or rejection of evidence) unless in the opinion of the court substantial wrong or miscarriage of justice has been thereby occasioned.  Cf. the exercise of discretion to grant relief in the judicial review context: Wei Linghui v Hong Kong Federation of Insurers Insurance Agents Registration Board [2019] 4 HKLRD 387, at [32] (Chow J, as he then was).

176.  The present case is one where the inadequacy of the reasons provided in the 22.05.2025 Decision Letter is so fundamental that there is a real risk that supplementary reasons would be a reconstruction of proper reasons, rather than the unexpressed actual reasons for the 1st Decision.  Cf. Lok Man Fai Felix at [38].  This is illustrated by a comparison of the different accounts given by the Respondents as the reasons for the 1st Decision.

176.1   Chan 1st said^[25] that apart from the CRC not being satisfied about the competence and capability of the Appellant’s AS and TD, and the Appellant’s site safety management, the Appellant had been involved in a string of fatal incidents, and that the Appellant had nine labour safety-related conviction records between 2020 to 2023 (but did not mention the SIPs and CSMIR).

176.2   Ho 1st said^[26] that the 1st Decision was justified because of (1) the CRC’s assessment of the Appellant’s ASs and the fact that none of the ASs had passed the CRC interviews, and (2) the Appellant had failed to address its deficiency in site safety supervision and safety management through the SIPs and/or CSMIR and/or other means.

176.3   Mr Yuen said that the 22.05.2025 Decision Letter gave the reasons for the 1st Decision as (1) the CRC’s recommendation of non-renewal, and (2) the BA’s view that the Appellant’s SIPs and CSMIR were not satisfactory.

176.4   The Respondents’ skeleton said^[27] that LM4 summarised the reasons for the 1st Decision (which included the fact of the 2024 Incident (not one of the Fatal Incidents)) and that in view of the disclosure of LM4, it would be superfluous to even require the BA to give reasons.  It also contained a lengthy section entitled “Contemporaneous evidence of good reasons for the 1st Decision”, which covered a large number of matters, including the Fatal Incidents, deficiencies in the CSMIR, the Appellant’s suspension from tendering for public works, and the CRC interviews.

176.5   The 22.05.2025 Decision Letter did not refer to the Appellant’s site safety management, labour safety-related conviction records, the Fatal Incidents, or the 2024 Incident.  Reference was made to the Application, to the Appellant’s correspondence and submission of supplementary information including the SIPs, CSMIR and DLA’s chaser letters, but not as reasons.

176.6   The 22.05.2025 Reply to DLA referred to the SIPs, CSMIR, the Appellant’s safety conviction record, and the CRC’s recommendations.

177.  Furthermore, it cannot be said that if the BA were to reconsider the Appellant’s application for renewal, he would inevitably come to the same conclusion.  First of all, the BA would be required to approach the matter with an open mind: Wei Linghui at [32].  Secondly, if the TD/AS Application is considered on its merits, as it should have been (as explained below), Mr Leung might be accepted as the Appellant’s AS, and might pass the CRC interview.^[28]  Also, if the Appellant has the opportunity to address the BA’s comments about the SIPs and CSMIR, which it had not previously been told about,^[29] the BA might form a different view about the adequacy of these reports, or about the Appellant’s site safety management.  These points would go to what Mr Yuen says are the reasons expressed in the 22.05.2025 Decision Letter for the 1st Decision.  Insofar as it is necessary to do so, I would hold that there has been substantial wrong or a miscarriage of justice appeal within the meaning of O.55 r.7(7) such that the appeal against the 1st Decision should be allowed.

178.  Given my views relating to this ground of challenge and the grounds of challenge in relation to the 2nd Decision as explained below (which also in turn affect the soundness of the 1st Decision), in my judgment, the appropriate relief in this case would be to set aside^[30] the 1st Decision and remit the Renewal Application to the BA for reconsideration and determination, pursuant to O.55 r.7(5).

E.     GROUND 1ST-2: MISAPPREHENSION OF FACTS

179.  The Appellant’s second ground of appeal in relation to the 1st Decision is that the BA wrongly took into account the abilities and competence of Mr Kan as the Appellant’s AS, despite having informed the Respondents that Mr Kan would be resigning from the Appellant and was no longer the Appellant’s proposed AS.

180.  There is no dispute that in reaching the 1st Decision, the BA took into account Mr Kan’s CRC interview on the basis that he was the Appellant’s AS.

E1.     The relevant principles

181.  The Respondents say that nothing in the BO prohibited the BA from taking into account the interview of Mr Kan, so that the Appellant would only succeed on this ground of appeal if it could show that it was Wednesbury unreasonable to take it into account, citing Loh Ming Yin v Hong Kong Examinations and Assessment Authority [2020] HKCFI 1135 at [251] to [252] (Coleman J).

182.  The Appellant says that it does not necessarily need to show that it was Wednesbury unreasonable for the BA to have taken into account Mr Kan’s CRC interview.  It suffices, on the authority of WKP, to show that the BA took into account an incorrect or irrelevant matter, and that this was material.

183.  I agree with Mr Yu that the Appellant is not confined to showing that it was Wednesbury unreasonable to have taken into account Mr Kan’s CRC interview.  The question which arises on an appeal of the present nature is whether the BA erred, and it will have done so if it took into account an incorrect or irrelevant matter which had a material effect on its decision.

E2.     Whether BA wrongly proceeded on the basis of Mr Kan being Appellant’s AS

184.  It is undisputed that the Appellant’s letter of 8th February 2024 to the Registration Unit of the BD^[31] stated that Mr Kan would be resigning from the Appellant once the handover of his work to his successor had been completed.  The letter itself had asked for the CRC to be notified, and the letter was passed to the CRC interviewing Mr Kan.

185.  It is also undisputed that after the interview, but before the 22.05.2025 Decision Letter, there were then two further letters of 11th April 2024 and 16th April 2024 by which the Appellant notified the BD that Mr Kan would be replaced by Mr Mak as the Appellant’s AS (in relation to the Appellant’s only two projects which at the time were governed by the BO and regulated by the BD) (again, no point is taken by the Respondents as to the addressee of the letter).

186.  Mr Yuen submitted, however, that it was necessary to bear in mind the earlier correspondence between the Appellant and the BD.  In particular, by an exchange of emails of 22nd and 23rd November 2023, the BD had asked the Appellant to nominate an AS to attend an interview in connection with the Renewal Application to address various of the Appellant’s conviction and suspension records and the 2023 Incident, and the Appellant had nominated Mr Kan for this purpose.  On 24th November 2023, the Appellant’s solicitors had further written to the BD to express a view that it would not be appropriate for an interview to be conducted yet as investigations and legal proceedings regarding two of the incidents were still in progress, but at the same time indicated that if the BD required an interview, Mr Kan would be available to attend.

187.  Mr Yuen submitted that in the circumstances, it was strange for the Appellant to adopt the stance in its letter of 8th February 2024 that although Mr Kan would be resigning as AS and could not represent the Appellant, he would nevertheless be willing to attend the CRC interview, and that no alternative arrangement was suggested by the Appellant.  Furthermore, Mr Kan’s subsequent resignation letter of 28th February 2024 was sent to the Appellant, and not to the BD, and the two letters sent to the BD on 11th and 16th April 2024 regarding replacement of Mr Kan as AS was for two specific projects of the Appellant, rather than for the Appellant generally, so that the BD was not actually aware of when Mr Kan had resigned from the Appellant.

188.  The Respondents further argued that the Appellant’s letter of 8th February 2024 could not be treated as a formal notification of Mr Kan’s resignation as it was not given in the prescribed form of a letter signed by the AS, with his full name printed, specifying the company’s name and registration number and the AS’s effective date of resignation, following Answer 11 to the Frequently Asked Questions in the BD’s Registration Guides on the BD’s website.  Mr Yu argued that this was merely a facile, technical objection: insofar as formal requirements are concerned, these were prescribed by PNRC 38 Appendix K, paragraph 10, which simply required prior notification of an AS’s intended resignation, and the Appellant’s letter had already given indication of such an intention; the Frequently Asked Questions did not have any statutory force such that this notice should be disregarded.

189.  In my judgment, the argument over the Frequently Asked Questions is something of a distraction.  The problem of the 8th February 2024 letter for the Appellant is not so much that it did not bear the Appellant’s chop and registration number and other such technicalities, but that it did not, as a matter of substance, indicate clearly that Mr Kan would not be speaking for the Appellant.  Whilst it said that Mr Kan “will also be resigning” and “will not be in the position to represent our company as an AS”, no date was given as to when the resignation would be, and it was not suggested that Mr Kan would not still be the Appellant’s AS at the time of the interview (and as a matter of fact he was still the Appellant’s AS at the time of the interview); indeed, the letter said that he was still carrying out “handover” work to his successor.  It is difficult to see how Mr Kan could be the Appellant’s AS, yet at the same time not be the Appellant’s AS for the purpose of the interview.  Furthermore, the Appellant did not suggest that it would disassociate itself from Mr Kan’s answers; on the contrary, it said that Mr Kan would report to the CRC “on what significant enhancement on our site safety management system has been implemented and their effectiveness”.  Nor did the Appellant suggest that Mr Kan should not be interviewed, or that some other representative of the Appellant should be interviewed instead (or in addition), or that the BD should make some other alternative arrangement in view of Mr Kan’s future departure (on a date yet to be ascertained).

190.  I therefore agree with Mr Yuen that the BA could not be said to have been in error in taking into account Mr Kan’s abilities and competence as the Appellant’s AS.

191.  I further agree that it was not irrelevant for the BA to take Mr Kan’s abilities and competence into account.

191.1   I note that it could be said that even if Mr Kan had not yet resigned, the fact that he would be resigning in the future was a relevant matter to take into account, in that this could have made a difference to the way in which the BA assessed the relevance of Mr Kan’s interview results.  The assessment of the suitability of an RGBC for renewal might differ depending on whether this was done on the basis that a failed AS previously acted for it (but at some point would no longer do so), or on the basis that a failed AS was still acting for it.  However, I do not see why the BA was not entitled to proceed on the basis that Mr Kan was still acting as the Appellant’s AS until he was told of an actual date on which the Appellant would no longer be acting as such.  Whilst, as Mr Yu said, paragraph 10 of Appendix K to PNRC 38 requires prior rather than retrospective notification, without indication of the intended date of resignation, the BA would not have known when Mr Kan would cease to be the Appellant’s AS.

191.2   It is not suggested that it would have been irrelevant for the BA to have taken into account the abilities and competence of Mr Kan as part of the past records of the Appellant.

E3.     Materiality of Mr Kan’s status

192.  In any event, even if I am wrong in my view that the BA was not in error in taking Mr Kan’s abilities and competence into account, any such error would not have been material to the 1st Decision.  This is because after Mr Kan’s interview, there was a further CRC interview on 11th April 2024 of Mr Mak, who was indeed put forward as the Appellant’s AS.  Had Mr Mak passed that interview, so that the Appellant had at least one passing AS (as required by paragraph 10 of PNRC 38), then it would not have mattered that Mr Kan had earlier failed his interview.

F.     GROUND 1ST-3c AND 2ND-2: FAILURE TO TAKE INTO ACCOUNT RELEVANT FACTS;

GROUND 2ND-3: FETTERING OF DISCRETION AND IRRATIONAL DECISION PURSUANT TO UNPUBLISHED POLICY;

AND

GROUND 2ND-1: 2ND DECISION WRONGLY BASED ON 1ST DECISION

193.  The Respondents’ skeleton says^[32] that the BA’s reasoning was that since no AS had passed their CRC interview, the Appellant had no AS to act for it for the purpose of the BO, and therefore the Renewal Application was refused.

194.  Because of this, the correctness of the 2nd Decision, namely, the BA’s dismissal of, or refusal to process, the TD/AS Application (to add Mr Leung as the Appellant’s TD and AS) is important.

F1.     Fettering of discretion

195.  The key challenge by the Appellant to the 2nd Decision was that the BA failed to properly consider the TD/AS Application, having fettered his discretion by reason of the Unpublished Policy.

196.  There was no dispute as to the applicable principles, which I summarise as follows.

196.1   When the legislature confers a discretionary power on a decision-maker exercisable from time to time over a period, such power must be exercised on each occasion in the light of the circumstances at the time.

196.2   It is legitimate for a decision-maker with whom a discretion has been entrusted to adopt a policy to guide his exercise and implementation of the discretion, provided that he does not allow the policy to fetter his discretion.  In other words, he must not apply his policy blindly and rigidly.

196.3   In particular, the policy must not preclude the decision-maker from (1) departing from it, or (2) taking into account the circumstances and merits of the particular case in question.  The policy adopted must fairly admit of exceptions to it.

196.4   Otherwise, if such an inflexible and invariable policy is adopted, both the policy and decision taken pursuant to it will be unlawful.

See R v Secretary of State for the Home Department, ex p Venables [1998] AC 407 at 496G-497C (Lord Browne-Wilkinson); Sime Darby Motor Services Ltd v Director of Lands [2024] 2 HKLRD 319 at [71] (G Lam JA).

197.  As explained in Lai Tak Shing v Director of Home Affairs unreported, CACV 201/2005, 9th October 2006 at [23] (Cheung JA) (appeal dismissed (2007) 10 HKCFAR 655), the rationale of the principle is to ensure that two perfectly legitimate administrative values, those of legal certainty and consistency, may be counteracted by another equally legitimate administrative value, namely, that of responsiveness; while allowing rules and policies to promote the former values, the principle requires that the full rigour of certainty and consistency be tempered by the willingness to make exceptions, to respond flexibly to unusual situations, and to apply justice in the individual case.

198.  Where a respondent asserts that an exception to a general policy exists, it should be made good by sufficient evidence: Sime Darby Motor Services Ltd at [72].

199.  The Respondents say that the rationale of the Unpublished Policy is to prevent potential abuse of the system, in that there is a risk that contractors applying for renewal of registration may repeatedly propose new individuals as their TDs or ASs with a view to achieving a favourable outcome for, or to delay the determination of, their renewal applications.  However, in the present case, there is no evidence (and indeed the Respondents do not suggest) that any consideration was given to whether the TD/AS Application in the present case was put forward as an attempted abuse.  On the contrary, the evidence is that when the TD/AS Application was received, it was simply suspended in accordance with the Unpublished Policy until such time as the Renewal Application was decided.^[33]  Then, once the Renewal Application was decided against the Appellant, the TD/AS Application was refused, as paragraph 5 of the 22.05.2025 Decision Letter made clear.

200.  To the extent necessary, I agree with Mr Yu that there was in fact no evidence of any abuse.  If anything, the evidence is to the contrary.  Once Mr Kan notified the Appellant in February 2024 of his intended resignation, this would have left the Appellant with only one AS after he left (as the earlier removal of the Appellant’s sister company ACEL from registration in November 2023 meant that the Appellants could no longer rely on ACEL’s ASs under the “pooling” arrangement^[34]).  The Appellant’s evidence is that it could not afford to be left with only one AS, as the Housing Authority required the Appellant to have a minimum of two ASs on the BD’s register in order to be eligible to tender for projects of unlimited value.^[35]  Accordingly, the Appellant made the TD/AS Application to add Mr Leung as its TD and AS after Mr Kan told the Appellant that he would be resigning.  The application was submitted on 6th February 2024, before the CRC interviews of Mr Kan and Mr Mak, and therefore could not have been made because of any perception of how these interviews went.  In these circumstances, I agree with Mr Yu that there was no basis for the Respondents’ assertion that “the Appellant… seeing that the circumstances were not going in its favour, sought to put in a new AS at the last minute, which, if allowed, would drag on the process”,^[36] and indeed Mr Yuen did not seek to defend this assertion in his oral submissions.

201.  The Respondents also say that the Unpublished Policy was not applied inflexibly as the BA and the BD would, “in appropriate circumstances”, consider departing from it “if circumstances justify such a departure” (for example when all ASs identified in a renewal application could no longer represent the applicant contractor due to factors such as resignation, death, serious illness), and that RC-5 did not prohibit the same.^[37]  The Appellant says that the Respondents fail to show either that there was any procedure to consider exceptional cases, or that any exceptions have actually ever been allowed in fact.  I agree.

201.1   Document RC-5, which the Respondents say was drawn up to provide internal guidance, did not indicate that there was any exceptions mechanism, or provide any guidance as to what might constitute circumstances justifying a departure and how such circumstances should be assessed.

201.2   It is notable that the possibility of exceptions was not mentioned in the Respondents’ earlier round of affidavit evidence filed in July 2025, despite the Appellant having already raised the complaint of the Unpublished Policy being unpublished and rigid at the hearing of its application for an interim stay in June 2025;^[38] rather, that evidence referred to the policy having been consistently applied^[39] – which would mean without exception.  In fact, the arrangement for interviewing ASs and TDs of applicants for renewal of registration as RGBCs in sequence if earlier ones failed was described as follows: “This process is known as “consecutive interview arrangement” (which, I shall stress, only allows accepted / valid ASs or TDs to attend interviews for the purpose of renewal applications, and only ASs and TDs sought to be added before expiry of registration may be accepted: see section F below [which refers to the Unpublished Policy])”.^[40]

201.3   In a subsequent round of evidence, two examples of “special circumstances”, said to demonstrate the reasonable exercise of the BA’s discretion, were put forward.^[41]  The Respondents no doubt carefully considered these before putting them forward as examples, as this evidence was filed consequent upon the adjournment granted to enable the Respondents to file further evidence.  I agree with Mr Yu that in fact the two examples fail to demonstrate that any exceptions have been allowed to the Unpublished Policy.  Both examples concerned renewal applications for which no CRC interview was required.  In accordance with an express provision in document RC-5,^[42] the applications to add personnel were therefore not put on hold.  In other words, the processing of the applications was carried out pursuant to the procedure in RC‑5, rather than as an exercise of discretion in “special circumstances”.^[43]  The documents disclosed by the Respondents in relation to the processing of the applications also do not suggest that there was any consideration of special circumstances involved.

202.  The Respondents then say that in the present case, the Appellant did not mention any special circumstances or request the BA’s special consideration.^[44]  The Appellant says that it did not know of either the Unpublished Policy or the possibility of exceptions to it by showing special circumstances; had it known that the BD would be prepared to consider the TD/AS Application by the showing of special circumstances, it would have asked the BD to do so.

203.  There is a dispute of fact as to whether or not the Appellant was aware of the Unpublished Policy.  It must have at least suspected that the policy, or something along the lines of the policy, might exist – hence the Appellant’s solicitors’ letter of 29th February 2024, referring to their understanding that it was the practice of BD not to consider any application for addition of a TD/AS whilst an RGBC licence renewal application was being processed, and warning that if the TD/AS Application was to be rejected on this basis, then it would be challenged.

204.  But whether or not the Appellant was aware, or at least suspected the existence, of the Unpublished Policy, there is no evidence that the Appellant was aware of the possibility of asking for special consideration by the showing of special circumstances.  The BD did not respond to the Appellant’s solicitors’ letter of 29th February 2024, or their further letters of 19th April 2024 or 20th January 2025 (which were chasers regarding the TD/AS Application), to either confirm the existence of the Unpublished Policy, or tell them about the possibility of demonstrating special circumstances to obtain special consideration.  The Appellant therefore cannot be criticised for not having explained to the BD that the TD/AS Application was not an abuse of process and was prompted by the fact that after Mr Kan’s resignation, the Appellant would only have one AS, which was insufficient for the purpose of Housing Authority projects.

205.  If the aim of the Unpublished Policy was to prevent abuse, there was no consideration of whether the TD/AS Application was a case of abuse.  The Respondents’ own evidence is that the application was put on hold for the sole reason that it was made on 6th February 2024, which was after the date when the Renewal Application was made (3rd March 2023).^[45]

206.  The Respondents do not say that Mr Leung did not have the requisite experience and qualifications to be accepted as the Appellant’s TD or AS.  In their skeleton, they sought to argue that the BA did consider Mr Leung’s ability and competence and decided that the TD/AS Application should not be processed because there were other matters which already justified refusal of the Renewal Application, and that a new AS could not salvage the Renewal Application.^[46]  However, this is contrary to the Respondents’ evidence, which, as mentioned, was that the TD/AS Application was simply put on hold because of the time at which it was made.  The merits of the application were thereafter not considered.

207.  For the foregoing reasons, I agree with the Appellant that the Unpublished Policy was applied in a rigid manner which precluded the TD/AS Application from being considered on its merits, and in the light of the circumstances applicable to this particular case.

208.  The 2nd Decision was therefore not arrived at after a proper exercise of the BA’s discretion.

209.  In my judgment, therefore, the 2nd Decision should be set aside and the TD/AS Application should be remitted to the BA for reconsideration and determination.

210.  The failure to take into account Mr Leung’s qualifications and experience by failing to consider the TD/AS Application also taints the 1st Decision.  The Respondents argue that even if these matters had been taken into account, this would not have salvaged the Renewal Application.  However, the matters were not taken into account, and it cannot be said that the result would have inevitably been the same, given that the Respondents now rely heavily on the Appellant not having had any qualified ASs as a reason for the refusal of the Renewal Application.  Mr Leung’s qualifications and experience and the TD/AS Application would have been a material consideration for the BA to take into account, given that (1) the BA’s stance is that the Unpublished Policy was aimed at preventing abuse and would be departed from if circumstances justified it, (2) it was not the BA’s view at the time of the 1st Decision that the TD/AS Application was abusive, (3) the BA would have been aware that if the Appellant’s ASs did not pass their interviews, the Appellant would have been left with no ASs, which had implications for the Renewal Application.  The 1st Decision is therefore erroneous for the additional reason that a material consideration was not taken into account.

F2.     Undisclosed policy?

211.  The Appellant also says that the BA acted unlawfully by adopting an unpublished policy.^[47]  Given the views I have expressed in the previous section, I do not need to decide this issue.  In deference to counsel’s arguments, I would simply make a number of brief observations, as follows.

212.  First, I have doubts as regards the Appellant’s sweeping assertion that the application of an undisclosed policy, without more, renders a decision unlawful.^[48]  Whilst, as Mr Yu submitted, the authority cited by the Respondents (Ghulam Rbani v Secretary for Justice (2014) 17 HKCFAR 138 at [66] and [77]) does not meet the Appellant’s argument, since the focus of the discussion in that case was whether a decision-maker should establish a (published) policy governing the exercise of his discretion, it equally does not appear that the authorities cited by the Appellant go as far as the Appellant asserts.

213.  In R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 (relied on by the Appellant), Lord Dyson JSC at [20] set out three propositions in relation to government policies, which were not in dispute in that case.

“ First, it must not be a blanket policy admitting of no possibility of exceptions. Secondly, if unpublished, it must not be inconsistent with any published policy. Thirdly, it should be published if it will inform discretionary decisions in respect of which the potential object of those decisions has a right to make representations.”

214.  The second proposition indicates that one objection to an unpublished policy is where it is inconsistent with a published policy.  This suggests that not all unpublished policies are necessarily objectionable.  The third proposition identifies one type of situation in which a policy should be published.  Again, this suggests that there is no absolute requirement that a policy must be published in order to be lawful.  As further explained at [35], the third proposition was directed to an individual’s right to know what the government’s policy is, so that he can make relevant representations.  If a particular individual in a particular case knows of the unpublished policy, and makes representations in relation thereto, then it would not necessarily follow that a decision affecting that individual, made pursuant to the policy, is unlawful simply because the policy was not published.  Thus in the two other authorities relied on by the Appellant,^[49] the significance of non-disclosure of the policies in question was considered in the context of the applicant’s lack of knowledge of the policies and therefore his inability to make relevant representations: see R (Lupepe) v Secretary of State for the Home Department [2017] EWHC 2690 (Admin) at [63], [66]; and R (McMorn) v Natural England [2016] PTSR 750 at [159].

215.  My second observation is that I would disagree with the Appellant’s submission that the Unpublished Policy was inconsistent with the BA’s published policies.^[50]  Whilst it is true that PNRC Appendices K and J did not refer to the Unpublished Policy (and that, for example, whilst Appendix K specifies the form to be used and the documents to be provided, it does not mention any restrictions as to timing of the application), this does not render the Unpublished Policy inconsistent with them.

216.  My third observation is that nevertheless, the failure to inform the Appellant of the exceptions to the Unpublished Policy, whether by publication or otherwise, so that the Appellant was unable to make any relevant representations as to why the TD/AS Application should be processed notwithstanding the policy, meant that the 2nd Decision was procedurally unfair.  As mentioned earlier, the Appellant did at least have some suspicion that the Unpublished Policy, or a policy along those lines, might exist – hence the Appellant’s solicitors’ letter of 29th February 2024.  It therefore did have the opportunity to make some representations in relation to the Unpublished Policy (as contained in that letter).  However, the Appellant was not told of the possibility of asking for special consideration by the showing of special circumstances, and as mentioned earlier, there is no evidence that it was aware of such a possibility.  It was therefore unable to make any representations to seek such special consideration.  Cf. Chui Marjorie Che Ying v Appeal Tribunal (Buildings) [2022] 4 HKLRD 5 at [111] to [112].^[51]  Were it necessary to do so, I would therefore agree with the Appellant’s complaint about the non-publication of the Unpublished Policy to this extent.

G.     RELEVANCE OF CHALLENGE TO GROUNDS 1ST-5 TO 1ST-7

217.  Mr Yuen pointed out that the only challenges targeted at the CRC relate to the 1st Decision, under grounds 5 and 6 (relating to the counting of the CRC chairman’s casting vote to arrive at the finding of “fail” for Mr Mak and Mr Wong in their CRC interviews) and ground 7 (relating to the composition of the CRC).  He submitted that if these grounds failed, then, since the Appellant has not made any complaints about the merits of the CRC’s recommendations to the BA, these recommendations would be unimpeachable, so that the BA could not be faulted for having relied on them.

218.  However, for the reasons I have already explained in sections D and F above, I consider that both the 1st Decision and the 2nd Decision should be set aside, and the Renewal Application and the TD/AS Application should be remitted to the BA for reconsideration.

219.  Strictly speaking, therefore, the challenges to the 1st Decision under grounds 5 to 7 (and indeed the other remaining grounds of challenge) do not need to be determined, and I will set out my views relatively briefly.

H.     GROUND 1ST-7: CRC COMPOSITION

220.  It will be recalled that the Respondents say that the CRC recommended that the Appellant’s registration should not be renewed, and that the 22.05.2025 Decision Letter says that “Taking into account the advice of CRC…I regret to REFUSE your renewal application…”

221.  The Appellant says that insofar as the BA purported to rely on the CRC’s advice, the CRC did not comply with s.8(3) BO and PNRC 38 paragraph 21 (which reproduced s.8(3) BO).  The argument as advanced in the Appellant’s original skeleton is that:^[52]

221.1   a CRC that is appointed to assist the BA in considering applications for renewal of registration must have the composition as set out in s.8(3) BO, namely, the BA’s representative together with persons nominated by certain bodies, totaling nine members altogether;

221.2   the Respondents have not adduced any evidence to show that the CRCs which provided the advice said to have been relied on by the BA (in arriving at the 1st Decision) comprised the statutorily-mandated composition;

221.3   at most, the Respondents’ evidence (as originally filed) is that the CRCs which carried out the interviews in the present case consisted of six persons (in the case of Mr Wong and Mr Mak) or seven persons (in the case of Mr Kan).  Furthermore, the evidence is that the CRC carrying out the interviews of Mr Wong and Mr Mak were specifically told that they were not assessing the Renewal Application;

221.4   insofar as the BA now says that he relied on the advice of the CRC in making the 1st Decision, this was not a CRC compliant with s.8(3) BO.

222.  The Respondents say that they subsequently adduced further evidence to say that for each of the CRC interviews, nine persons were contacted, and although not all nine persons could attend, those that could attend met the quorum requirements specified in s.8(8) BO.^[53]  On the third day of the hearing of the appeal, Mr Yuen in the course of his submissions indicated that he had instructions to offer an undertaking to provide further evidence to meet any objection that the further evidence provided was hearsay in nature.

223.  The way in which the evidence emerged on this issue was as follows.

223.1   On 13th August 2025, the Appellant filed the ANOM to raise Ground 1st-7.

223.2   On 18th August 2025, the Appellant lodged its skeleton, pointing out that whilst Chan 2nd – made by the main deponent for the BA – stated that the BA had carefully considered advice from the CRC in making the 1st Decision, there was no evidence as to the composition of the CRC in question, what advice it gave, and when it gave that advice.^[54]  The skeleton further pointed out that the evidence from Mr Ip, the chairman of the CRC which interviewed Mr Wong and Mr Mak, said that six persons conducted these interviews; and that the evidence from Mr Tam, the chairman of the CRC which interviewed Mr Kan, said that seven persons conducted that interview.  Complaint was specifically made that these CRCs did not have the composition mandated by s.8(3) BO, and that insofar as they purported to have given recommendations to the BA as recorded in the meeting minutes, these would have been from CRCs not compliant with s.8(3) BO.

223.3   The BA applied for, and obtained, an adjournment of the hearing of the appeal for the purpose of filing evidence to address the new grounds of appeal.

223.4   On 1st September 2025, Ho 1st was filed.  This said that the BA has a panel of sufficient members from whom he is to appoint CRCs, and that the BA^[55] appointed six CRCs for general building contractors.  Ho 1st went on to say that when there is a need to convene a CRC meeting, colleagues of the BD’s Registration Unit (which was termed as “the Registry”) would contact CRC members to ascertain their availability to attend the meeting.  There were then three paragraphs saying that each of the CRC meetings on 19th December 2023, 22nd February 2024, and 11th April 2024 (at which Mr Wong, Mr Kan and Mr Mak respectively were interviewed), “the Registry contacted 9 members of the CRC for the meeting” and that it transpired that sufficient members to constitute a quorum under s.8(8) BO were available to attend, so that the meetings went ahead.

224.  Mr Yu argued that the evidence nevertheless failed to demonstrate that the CRC advising the BA about non-renewal had the requisite composition under s.8(3) BO.  He submitted that:

224.1   the evidence in Ho 1st is inadmissible by reason of being hearsay evidence;

224.2   the letters sent to the members of the CRC attending the interviews showed that it was not the case that nine persons were contacted;

224.3   since (1) only six or seven CRC members were summoned to attend the meetings, (2) Mr Ip’s evidence was that the CRC members interviewing Mr Wong and Mr Mak were told that they would not be assessing the Renewal Application, (3) the standard form for taking the minutes stated that the candidates were being interviewed in accordance with s.8(2) BO, the meetings must have been for performing the CRC’s role under s.8(2)(c) rather than under s.8(3) BO.

225.  Ho 1st simply asserts, without particulars, that “the Registry” contacted nine members to invite them to attend the meetings and that “the 9 members invited to attend each of the meetings conformed with the composition under section 8(3)”.  I agree that this is hearsay and inadmissible, given O.41 r.5(1).  Even if it could be considered as hearsay evidence, it fails to identify the source and grounds (as would be required by O.41 r.5(2) for affidavits used in interlocutory applications).  Despite seeking and obtaining an adjournment to file evidence to meet Ground 1st‑7, the Respondents did not see fit to file evidence from someone with first-hand knowledge to properly particularise the composition of the CRCs said to have advised the BA.

226.  However, it does not follow that I can draw the conclusions sought by Mr Yu.

226.1   The letters of 18th December 2023 and 5th April 2024 to the six CRC members regarding the meetings fixed for 19th December 2023 and 11th April 2024 respectively were marked “for record only” and provided a schedule, information and assessment forms relating to the candidates to be interviewed; a fair reading suggests that the addressees’ availability to attend the meeting had already been ascertained.  I do not read them as invitations to six members only.  Similarly, the email of 15th February 2024 which Mr Tam says he received regarding the meeting on 22nd February 2024 is not a mere enquiry email as to whether he would be free to attend on that day; it provided information and documents regarding the meeting for Mr Tam to study and use.

226.2   It is indeed the case that Mr Ip’s evidence is that the CRC members at the meetings of 19th December 2023 and 11th April 2024 were expressly told that they would not be required to assess the Renewal Application, and that the interview was to assess the competence and ability of the interviewees (Mr Wong and Mr Mak), and that Mr Tam’s evidence is that the CRC members at the meeting of 22nd February 2024 were told that the interview was to assess the competence and ability of the interviewee (Mr Kan).  However, contrary to Mr Yu’s submission, it does not follow, that because the CRC members were performing their role under s.8(2)(c) BO (conducting interviews) rather than s.8(2)(d) (advising the BA about applications for inclusion in the relevant register), the BD had set out to convene a smaller group of persons to conduct the interview than the nine‑member composition under s.8(3).  As for the point that the standard form used to prepare minutes of the CRC interviews referred to the interviews as being conducted in accordance with s.8(2)(c) BO, the same form then stated that the CRC’s recommendations were to be referred to the BA for consideration under s.8(2)(d) BO.

226.3   As a matter of statutory interpretation, I do not agree with Mr Yu’s submission that it is only a CRC performing functions under s.8(2)(d) BO that needs to meet the composition requirement in s.8(3), whereas a CRC performing functions under s.8(2)(c) does not need to meet this requirement.  It seems to me to be reasonably clear that s.8(3) prescribes the composition of CRCs appointed to assist the BA in considering applications for registration of general building contractors; s.8(3A) prescribes the composition of CRCs appointed to assist the BA in considering applications for registration of specialist contractors; and for both types of CRC, s.8(2) prescribes that their function is to assist the BA in considering applications for registration, by carrying out the four tasks prescribed in s.8(2)(a) to (d).  There is no basis for confining the composition requirements in s.8(3) (or indeed s.8(3A)) to only the task in s.8(2)(d).  Mr Yu submitted that it is s.8(2)(d) that refers to the task of advising the BA to accept, defer or reject applications for inclusion in the relevant register, and therefore this is the only task where the CRC must be composed as prescribed in s.8(3).  But the opening words of s.8(2) state that the CRC is “to assist the Building Authority in considering applications for inclusion in a register”, and these are echoed – indeed reproduced – in the opening words of s.8(3) which prescribes the composition of a CRC which is appointed “to assist the Building Authority in considering applications for inclusion in a register”.

227.  I therefore do not agree that this ground of appeal is made out.

I.     GROUNDS 1ST-5 & 1ST-6: CRC CHAIRMAN’S CASTING VOTE

228.  It will be recalled that the application to add Mr Leung as the Appellant’s AS was put on hold, and that Mr Kan was assessed as the Appellant’s AS and failed.  This left Mr Mak as the last remaining AS of the Appellant.  He failed his CRC interview because of Mr Ip’s casting vote.

229.  The Appellant says that Mr Ip had no power to cast a second, casting vote as:

229.1   it is necessary for statute to provide for a casting vote, citing R (Spitalfields Trust) v Tower Hamlets LBC [2025] PTSR 700 at [50];

229.2   a body such as a local authority has no inherent power to confer a casting vote on the chairman of its meetings: R v Bradford City Metropolitan Council [1990] 2 QB 363 at 371E;

229.3   the BO does not confer a casting vote on the CRC chairman.  The legislature did not intend the CRC chairman to have a casting vote: cf. s.50(1)(b) BO, which expressly provides that the chairman of the Appeal Tribunal has a casting vote where there is an equality of votes.

230.  I agree with Mr Yuen that the CRC chairman does have the power to cast a casting vote by reason of s.52 of the Interpretation and General Clauses Ordinance (Cap.1) (“IGCO”), which provides as follows:

“ (1) Where any Ordinance confers a power or imposes a duty upon a body or number of persons consisting of or being not less than 3, such power may be exercised or duty performed in the name of that body or number of persons by a majority of those persons.

(2)     Whenever such body or number of persons is assembled, the chairman or other member presiding shall have a casting as well as a deliberative vote, in all matters in which a decision is taken by vote by whatever name such vote may be called.”

231.  Mr Yu submitted that s.52 IGCO is inapplicable because s.52(1) provides that s.52(2) applies only in the situation where an ordinance confers a power, or imposes a duty, on a body.  He submitted that when the CRC assists the BA in dealing with renewal applications, it is neither exercising any duty, as the BA is not obliged to seek the CRC’s advice in relation to renewal applications (s.8C(4) BO); nor is it exercising any power, as the BA is not obliged to accept its advice.

232.  I do not agree that the BO does not confer any duty on the CRC.  Under s.8(2) BO, the CRC is required to assist the BA by carrying out the four tasks thereunder.  One of these is to conduct interviews with applicants (s.8(2)(c)).  Under s.8(4), the CRC is required to meet as often as the BA directs.  In the present case, the CRC was required by the BA to meet to conduct an interview with Mr Mak, in order to assist the BA in considering the Renewal Application.  Whilst it is true that the BA was not obliged to seek the CRC’s advice in relation to renewal applications, and that the BA was not obliged to heed any advice given, the present case was one where the BA required Mr Mak to be interviewed.  Accordingly, pursuant to s.8(2)(c) and s.8(4) BO, the CRC had a duty to conduct the interview.

233.  Mr Yu further submitted that s.52 IGCO is inapplicable because s.2(1) IGCO stipulates that the provisions of the IGCO shall apply “Save where the contrary intention appears either from this Ordinance or from the context of any other Ordinance or instrument”.  In the present case, the presence of s.50(1)(b) BO, expressly conferring a casting vote on the chairman of the Appeal Tribunal, shows that it was not intended that the chairman of the CRC should have such a casting vote.

234.  I do not agree.  Whilst the provisions relating to the Appeal Tribunal are also contained in the BO, and whilst the statute should of course be construed as a whole, nevertheless, the provisions relating to the establishment and operation of the CRC in Part 1 of the BO are very different from those relating to the establishment and operation of the Appeal Tribunal in Part 6.  It cannot be inferred that the legislature intended any direct parallel to be drawn between the two bodies.

235.  I therefore do not agree that this ground of appeal is made out.

J.     GROUND 1ST-3: FAILURE TO TAKE INTO ACCOUNT RELEVANT CONSIDERATIONS

236.  I have already dealt with Ground 1st-3c above, in section F.

237.  The other complaints about the Respondents’ failure to take into account relevant considerations involve disputes of fact, such as whether or not the Fatal Incidents evidence any systemic issue with the Appellant’s safety management.  As mentioned above, the parties agree that these disputes cannot be resolved in the present appeal.

K.     GROUND 1ST-4: WEDNESBURY UNREASONABLENESS

238.  This was something of a wrap-up ground.  The Appellant says that it was Wednesbury unreasonable that (1) the BA failed to give proper reasons for the 1st Decision, (2) the BA took into account Mr Kan’s CRC interview, and (3) the BA failed to consider Mr Leung’s qualifications and experience in assessing the Renewal Application.  I have addressed these matters earlier above under different grounds, and consider that they are more appropriately addressed under those grounds than the rubric of Wednesbury unreasonableness.

L.     DISPOSITION

239.  I therefore allow the appeal, set aside the 1st Decision and 2nd Decision, and remit the Renewal Application and the TD/AS Application to the BA for reconsideration and determination.

240.  I emphasise once again that in this appeal, the court is not deciding the question of whether, objectively speaking, the Appellant is suitable for continued registration.  The merits of the Renewal Application and the TD/AS Application are to be considered by the BA.

241.  I further make a costs order nisi that the costs of and occasioned by the appeal should be paid by the BA to the Appellant, with certificate for two counsel, to be taxed if not agreed.