CHUNG WAI YIN v. TRANSPORT TRIBUNAL

HCAL 492/2025

[2025] HKCFI 877

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 492 OF 2025

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AND

HCAL 494/2025

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 494 OF 2025

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(Heard together)

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D E C I S I O N

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A.  Introduction

1.  The Applicant attended two private car driving tests on 2 November 2022 and 28 February 2023, and failed both. The Transport Department (“TD”) refused to issue a probationary driving licence to her. The Applicant filed complaints to TD, and then sought reviews by the Transport Tribunal (“Tribunal”). Both reviews were heard by the same Tribunal members, and were dismissed by the Tribunal’s decisions both dated 27 November 2024 (“Decisions”).

2.  Now, in two near identical applications made by Forms 86 dated 24 February 2025, the Applicant seeks leave to apply for judicial review so as to challenge the Decisions, with the intended relief that both Decisions be quashed. Each Form 86 says that the relief is sought on the grounds of “(i) Error of Law; (ii) Procedural Unfairness; and (iii) Irrationality”, though no further details are provided on the Forms 86 themselves. The thrust of the Applicant’s intended argument is to be found in her affirmations.

3.  Having considered the materials, I am satisfied that the applications can be dealt with together, and on the papers. This is my Decision.

B.  Background and Chronology

4.  The broad background chronologies for the two cases – which ultimately moved in tandem – can be taken from the Applicant’s affirmations, and can set out in a table as follows:

HCAL 492/2025 (Tribunal Case No: 18a/2023)		HCAL 494/2025 (Tribunal Case No: 18b/2023)
2 Nov 2022	Applicant attended the driving test, and failed	28 Feb 2023	Applicant attended the driving test, and failed
3 Mar 2023	Applicant lodged a complaint against the test result by phone to TD	1 Mar 2023	Applicant lodged a complaint against the test result by phone to TD
7 Mar 2023	Driving Test Examiner, Ms Ruby Lau submitted her first report	10 Mar 2023	Applicant put her complaint in writing and sent to TD by fax and by post
10 Mar 2023	Applicant put her complaint in writing and sent to TD by fax and by post	13 Mar 2023	Driving Test Examiner, Mr CM Chan submitted his first report
		27 Mar 2023	Applicant provided supplementary information for her complaint
28 Mar 2023	A written reply was issued by Driving Examiner I (Complaints and Training) 3 to Applicant stating the outcome of TD’s investigation	28 Mar 2023	A written reply was issued by Driving Examiner I (Complaints and Training) 2 to Applicant stating the outcome of TD’s investigation
27 Apr 2023	Applicant expressed her dissatisfaction by fax and post	27 Apr 2023	Applicant expressed her dissatisfaction by fax and post
4 May 2023	The Examiner submitted her second report	3 May 2023	The Examiner submitted his second report
17 May 2023	Senior Driving Examiner 2 (SDE2) reviewed the whole case and conducted an interview with Applicant	17 May 2023	Senior Driving Examiner 2 (SDE2) reviewed the whole case and conducted an interview with Applicant
		19 May 2023	Upon request from SDE2, the Examiner provided his third report
15 Jun 2023	A written reply was issued by SDE2 to Applicant	15 Jun 2023	A written reply was issued by SDE2 to Applicant
20 June 2023	Applicant requested a review by Tribunal in accordance with regulation 45 of Cap 374B	20 June 2023	Applicant requested a review by Tribunal in accordance with regulation 45 of Cap 374B
28 Mar 2024	Expert Report issued by Prof Lo Kok Keung (engaged by the Applicant)	25 Mar 2024	Expert Report issued by Prof Lo Kok Keung (engaged by the Applicant)
3 Jul 2024	Applicant’s Submission in response to Brief Facts prepared by TD	3 Jul 2024	Applicant’s Submission in response to Brief Facts prepared by TD
14 Nov 2024	Hearing conducted before the Tribunal	14 Nov 2024	Hearing conducted before the Tribunal
27 Nov 2024	Tribunal’s Decision	27 Nov 2024	Tribunal’s Decision

5.  The refusal to issue a probationary driving licence to the Applicant was made as a result of each Examiner finding that, in addition to some ‘minor mistakes’, the Applicant committed some ‘serious mistakes’ (together “Mistakes”). Serious mistakes are defined in the Guide to Private Car and Light Goods Vehicle Driving Test as those which would cause imminent or direct danger, as well as a candidate’s driving technique or basic control not being up to the stipulated standard of the TD.

6.  In the first driving test, the Examiner identified three serious mistakes, namely Item 34 (Inconsiderate to other road users), Item 55 (Improper control of steering) and Item 59 (Wrong positioning on turns) in one location, namely a junction between Sheung Shing Street and Shek Ku Street.

7.  In the second driving test, the Examiner identified two serious mistakes, namely Item 55 (Improper control of steering) and Item 59 (Wrong positioning on turns) in three locations, namely (1) a junction between Chung Yee Street and Hau Man Street, (2) a junction between Chung Hau Street and Carmel Village Street, and (3) a junction between Chung Hau Street and Hau Man Street.

8.  As the Applicant explains, the driving test candidate is not allowed to use any devices like a mobile phone or car camera to record the whole process of the driving test. Therefore, she has no such record, and the only available record of the driving tests were the internal test forms prepared by the Examiners immediately after the driving tests.

9.  Following investigation as to each complaint made by the Applicant, the conclusion reached was that there was no concrete evidence to prove the Examiner’s judgment was wrong. As the Applicant was not satisfied with the investigation results, she requested a review of each case by the Tribunal.

10.  To prepare for each review by the Tribunal, the Applicant appointed Professor Lo Kok Keung as her expert witness. To assist Professor Lo to reconstruct the probable driving path where the Mistakes were recorded, the Applicant obtained the relevant traffic aid drawings, the particulars of the test vehicle, TD’s Internal Test Form and the sketch given by the Examiners. Professor Lo duly provided his expert reports.

11.  For each review, the TT prepared a Brief Facts of the Case, and the Applicant prepared her submission in response.

12.  In neither review did the TD make any further submission in response to the Applicant’s submission, nor request to adduce any expert evidence to reply to the expert report of Professor Lo.

13.  The two review hearings were held separately, one after the other, albeit on the same date of 14 November 2024.

14.  The two Decisions of the Tribunal were issued on 27 November 2024.

15.  In each Decision, the Tribunal identified that it had to decide whether the Applicant had committed the serious mistakes as identified by the Examiner. Having carefully considered the parties’ written representations, the Tribunal accepted that there was no evidence suggesting that the Examiner’s assessment was wrong or in any way inappropriate. Having accepted that the Applicant had committed the serious mistakes, the conclusion was that the Applicant had therefore failed Part C of the private car driving test (Combined Test).

C.  Driving Test Result Appeal Mechanism

16.  The TD has an established mechanism for handling complaints against driving test results, as follows:

(1)  Initial complaints are directed to a Driving Examiner I, who is responsible for handling complaints and enquiries.

(2)  After investigation, the Driving Examiner I will inform the candidate of the outcome.

(3)  If the candidate is not satisfied with the reply, he/she may request a review by the Senior Driving Examiner (SDE).

(4)  The SDE will conduct an interview with the candidate and will inform the candidate of the review result.

(5)  The candidate may also apply in writing to the Commissioner for a review by the Tribunal in accordance with Regulation 45 of the Road Traffic (Driving Licences) Regulations Cap 374B within 14 days of being notified of the refusal to issue a driving licence by the Commissioner.

17.  Regulation 45 provides that:

45. Right of review

A person aggrieved by-

(a) the refusal of the Commissioner to issue, reissue or renew a driving licence or driving instructor’s licence; or

(b) the cancellation by the Commissioner of a driving licence or driving instructor’s licence,

may within 14 days of being notified of the refusal or cancellation apply in writing to the Commissioner for a review by a Transport Tribunal of the refusal or cancellation.

D.  Intended Grounds of Review

18.  As already noted, each Form 86 says that the relief is sought on the grounds of “(i) Error of Law; (ii) Procedural Unfairness; and (iii) Irrationality”, though no further details are provided on the Forms 86 themselves.

19.  The thrust of the Applicant’s intended argument is to be found in her affirmations. The Applicant says that upon her review of the Tribunal’s Decisions and the full records of the hearings, she identified “some of the arguable findings of [Tribunal’s] Decision with possible error of law, procedural unfairness and irrationality as stated below (non-exhaustive list)”. At the end of her affirmations, the Applicant also stated that the contents were “just preliminary findings”, but not an exhaustive list, and she purported to reserve her rights to submit further findings in support of her leave application and/or in substantive hearing of judicial review.

20.  First, it can be noted that an applicant for leave to apply for judicial review must comply with the mandatory requirement under Rules of the High Court Order 53 rule 3(2) to set out, amongst other things, the relief sought and the grounds on which it is sought, as well as to make an affidavit/affirmation verifying the facts relied on. This requirement means that the Applicant was required to set out all intended grounds of review and to provide all relevant evidence in support of the application. It was not open to the Applicant to put forward only her “preliminary findings” in a “non-exhaustive list”, or to purport to exercise the “right” (which in fact does not exist) to submit further matters in support of the leave application. An application for leave to apply for judicial review does not happen on some rolling basis, and the Court does not wait to see if an applicant might put forward other matters at some unspecified point in time. In other words, the Applicant’s present application stands or falls on the intended grounds of review apparently put forward in the materials.

21.  Secondly, those materials appear to encompass two main areas or intended grounds of review: (1) a point relating to the burden and standard of proof, and (2) arguments as to the findings made by the Tribunal as regards the Mistakes.

E.  Any Merits?

E.1  Ground 1

22.  The Applicant argued before the Tribunal that it was the examiner’s burden to prove a candidate’s mistakes in the driving test so as to assess his/her adequate driving competency and skills to drive safely. Hence, the Applicant argued, the standard of proof should be the “balance of possibility”.

23.  In her affirmations, the Applicant referred to ‘The Guidance Notes for Driving Examiners’ dated 2019 and 2024. In particular, she pointed to Part Four ‘General Matters’, paragraph (C) ‘Standard of assessment’, which states:

A road test is an assessment of the candidate’s driving ability. A candidate will be checked on his/her ability in driving listed out in the requirements for a driving test (refer pages 4-6) namely starting; stopping; turning; turnabout in a narrow road; compliance with traffic signs and signals; passing vehicles; travelling through controlled, uncontrolled intersections; anticipation of hazardous conditions and lastly his/her attitude towards other road users during driving.

In assessing the above manoeuvres and examiners should be able to find where a driving fault lies and when to penalise the candidate with justifiable cause by making constant reference to the marking criteria as shown in Section (D) below. The adoption of the “Fault Diagnosis” system is designed so that no candidate would be failed without substantial reasons and that all examiners adopt the same standard of marking.

24.  The Applicant asserts that stated system suggests that it is the examiner’s burden to prove the candidate’s fault/mistake during the driving test with justifiable cause and substantial reasons, which may suggest the standard of proof being not lower than the balance of probabilities.

25.  I disagree. I do not think that statement in the Guidance Note says anything in particular about the burden or standard of proof (as would ordinarily be understood in the legal context). All that the relevant passage identifies is that the examiner should be satisfied that there is a substantial reason or that there are substantial reasons for failing the particular candidate, adopting a standard of marking applicable by all examiners to all candidates. The aim is consistency, and the absence of arbitrariness, in finding a fault of the kind which leads to failing a test. It is the substantial reason for finding a fault which provides the justifiable cause to penalise the candidate by failing him/her. Of course, it is the examiner making the relevant assessment of competence, but it is the candidate seeking to demonstrate the relevant required degree of competence.

26.  When it comes to a review by the Tribunal, the position is in essence the same – but where the Tribunal is reviewing whether it thinks the examiner had a substantial reason for failing the candidate.

27.  In this case, in dealing with the Applicant’s submission that “the burden of proof lies with the Examiner to establish that the Applicant had committed the relevant serious mistakes” and “the applicable standard of proof was the balance of probabilities”, the Tribunal held (for example in the Decision relating to HCAL 492/2025) that:

20.  However, the Tribunal does not agree with the Applicant’s submissions in this regard. According to section 33(1) of the Regulations, a person shall pass a driving test to drive a motor vehicle of the class specified in the driving test form if he satisfies an authorized examiner conducting the test that he is able to comply with the relevant requirements in the Eighth Schedule to the Regulations. In other words, if a candidate is not able to satisfy an examiner that he is able to comply with the applicable requirements, he shall not pass a driving test. It is clear that, in terms of taking a driving test, the burden lies with the candidate.

21.  A driving test is a test of competence to drive a motor vehicle (as defined in the Regulations). The purpose of a driving test is to ensure that candidates who may be issued a driving license by the Commissioner is competent to drive the class of vehicle on which he is tested. Road safety hinges on the competence of drivers. An applicant not up to an acceptable standard should not be issued a driving license as he might impose danger to other road users. Therefore, it is crucial that an applicant should be able to demonstrate that he is able to satisfy the required standard before he is issued a driving license by the Commissioner. It would be absurd to common sense if the burden is to be reversed in a review application, as it will defeat the safeguard of a driving test. Therefore, in this review application, the applicant must bear the burden of proof.

28.  I do not think there is anything reasonably arguably wrong with that approach. It is based upon the rules and common sense, starting from the position that the Examiner had failed the Applicant because the Examiner (in each case) considered that the Applicant had committed the Mistakes, justifying failing the Applicant. The Tribunal did so also by asking itself the question whether the Applicant had committed the Mistakes as alleged by the Examiner, before reaching the conclusion on each review that there was no sufficient evidence to suggest that the Examiner’s assessment was wrong or in any way inappropriate.

29.  The Tribunal weighed the evidence, and reached its conclusion. It seems to me it did so without having any necessary recourse to who bore the burden of proof in any event, though bearing in mind that it falls to a candidate to demonstrate the relevant required level of competence.

E.2  Ground 2

30.  Though framed as identifying an arguable case on procedural unfairness or irrationality, it is clear that the arguments relating to the findings made by the Tribunal as regards the Mistakes are essentially a challenge to the merits of the Decisions. Indeed, the essence of the challenge is to criticise the Tribunal for having given Professor Lo’s opinion little or no weight, and instead adopting what the Applicant has described as “just laymen’s views”. This is not fertile ground for judicial review, where it is settled that the Court is ordinarily not concerned with the merits of the underlying decision, but is concerned to ensure the integrity of the decision-making process.

31.  For example, in the Tribunal’s decision referable to HCAL 492/2025, the Tribunal considered the expert evidence of Professor Lo in the following terms:

33. The Tribunal considers that Mr. Lo’s opinions are of limited probative value for the purpose of this review application. The opinions given by Mr. Lo were based on the assumption that the Applicant would manoeuvre the test vehicle in an ideal way (i.e. the Applicant would steer the test vehicle back towards centre of the 1^st lane after moving off). If the Applicant did not actually drive in an ideal way, the proposition made by Mr. Lo will be of little assistance to the Tribunal. Further, the clearance, as suggested by Mr. Lo was only 0.25 meters. The clearance could easily come to zero even if a car is moving at a “dead slow speed” if the car is inclined (i.e. not travelling straight ahead).

32.  The Tribunal adopted a similar approach as regards the other Mistakes, and other aspects of the evidence. It did so having identified the key question which fell for determination, namely whether the Applicant had committed the Mistakes which led to the Applicant’s failing the driving test. It is entirely proper to give little or no weight to expert opinion based on assumptions which are not thought to be sound.

33.  The Decisions identify that the Tribunal had in mind the relevant evidence and submissions advanced during the hearings. Each Decision sets out the background, as well as summaries of the TD’s evidence, the Applicant’s evidence (including the findings put forward by Professor Lo), the TD’s submissions and the Applicant’s submissions. Each of the Decisions then sets out the Tribunal’s reasoning leading to its conclusion. There is nothing to suggest that the Tribunal did not take all of these matters into account. Indeed, the Tribunal expressly said it had done so.

34.  Further, the weighing of the evidence was a matter for the Tribunal, and the Tribunal was entitled to place more weight on one piece of evidence over another, or to accept some evidence and testimony in place of other. Having conducted the weighing exercise, the Tribunal accepted that there was no evidence suggesting that the Examiner’s assessment was wrong or in any way inappropriate. Nothing in the approach of the Tribunal identifies any reasonably arguable procedural unfairness or irrationality.

F.  Result

35.  The Applicant has failed to identify any reasonably arguable public law grounds of review with any realistic prospect of success. Therefore, both applications for leave to apply for judicial review are dismissed.

36.  I make no order as to costs.