HO SUEN KO t/a SUN YIP ENGINEERING CO v. THE DIRECTOR OF FIRE SERVICES AND ANTOHER

HCAL 1837/2023

[2024] HKCFI 189

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1837 OF 2023

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D E C I S I O N

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A.  Introduction

1.  The Applicant is a Class 1 and Class 2 registered Fire Service Installation Contractor, being registered on the register of fire service installation contractors (“Register”).

2.  On 13 September 2023, the Registered Fire Service Installation Contractors Disciplinary Board (“Board”)  ordered that the Applicant’s name should be removed from the Register in Class 1 and Class 2 for a period of three months (“Suspension Order”).  The Suspension Order was made by the Board pursuant to Regulation 10(2)(a)  of the Fire Service (Installation Contractors)  Regulations, Cap 95A (“Regulations”).

3.  By his Form 86 dated 12 October 2023, the Applicant seeks leave to apply for judicial review so as to challenge the Suspension Order, ultimately seeking the relief that the Suspension Order should be set aside, and that the Applicant – instead of being suspended – should be reprimanded pursuant to Regulation 10(2)(b)  of the Regulations.

4.  By my directions given on 19 October 2023, I gave leave to the putative respondents to file and serve an initial response to the application, and for the Applicant to file and serve a reply to that initial response.  I also indicated that, depending on the contents of those documents, I would decide whether to deal with the application for leave to apply for judicial review on paper and, if I were to decide to do so, that I would proceed to do so without further notice to the parties.

5.  As would be expected, the Board indicated that it would take a neutral role in these proceedings and would abide by any decision made by the Court.

6.  No objection was made by either the Applicant or the Director to the timetable originally set by me.  Indeed, that timetable was extended by consent, such that the initial response could be served by 14 December 2023, and the reply could be served by 21 December 2023.  The 1^st putative respondent, the Director of Fire Services (“Director”), filed the initial response on 14 December 2023, signed by Mr Ryan Lee, Government Counsel.  The Applicant has not taken advantage of the opportunity to file any reply within the timeframe set, and has sought no further extension.

7.  Having considered the papers, I am satisfied that it is appropriate to deal with this application on paper.  This is my Decision.

B.  The Board

8.  It is helpful first to identify the nature of the Board, and its place in the relevant regulatory framework.

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

10.  The Board comprises six members, being (1) a member of the committee of the Fire Insurance Association of Hong Kong nominated by that Association; (2) a public officer nominated by the Building Authority; (3) a public officer nominated by the Water Authority; (4) a registered contractor nominated by the Director; (5) the Director or his representative; and (6) a legal adviser appointed by the Director.

11.  Regulation 10(1)  and (2)  of the Regulations provide as follows:

10.  Disciplinary proceedings

(1)  If it appears to the Director that a registered contractor has been convicted by any court of such an offence, or has been guilty of such improper conduct or negligence in the installation, maintenance, repair or inspection of any fire service installation or equipment, as to—

(a)  render him unfit to be on the register; or

(b)  make his continued inclusion in the register prejudicial to the due administration of the Ordinance,

the Director may refer the matter to the disciplinary board.

(2)  If, after due inquiry, the disciplinary board is satisfied that a registered contractor has been convicted of an offence or has been guilty of improper conduct or negligence, of the kind mentioned in paragraph (1), the disciplinary board may order—

(a)  that the name of the registered contractor be removed, either permanently or for such period as it thinks appropriate, from the register; or

(b)  that the registered contractor be reprimanded.

12.  The reference to the Ordinance is to the Fire Services Ordinance Cap 95 (“Ordinance”).

13.  Hence, under Regulation 10(1), the Director may refer a matter to the Board, and under Regulation 10(2), and after due inquiry, the Board may order that (a) the registered contractor be removed or suspended from the Register, or that (b) he be reprimanded.

14.  Under Regulation 12 of the Regulations, a registered contractor who is aggrieved by an order made in respect of him by the Board under Regulation 10(2)  may appeal to the Court of First Instance (“CFI”)  which may confirm, reverse or vary the order of the Board, and may exercise any power which the Board might have exercised.  Notice of any appeal must be given by the registered contractor within 30 days after the date of service of the order of the Board upon him.

15.  There is, therefore, a prescribed statutory appeal mechanism for a registered contractor to appeal from orders such as the Suspension Order made against the Applicant.

C.  Background

16.  On 8 March 2023, the Applicant was convicted – on his own guilty plea – at the Kowloon City Magistrates’ Court of contravening Regulation 9(3)(b)  of the Fire Services (Installations and Equipment)  Regulations Cap 95B (“I&E Regulations”).  He was fined $10,000.

17.  On 14 June 2023, the Director informed the Applicant by letter that he would refer the matter to the Board.  On 11 August 2023, the Director informed the Applicant that he had referred the case to the Board, and invited the Applicant to attend the Inquiry Hearing fixed on 13 September 2023.

18.  Enclosed with that letter was the Statement of Grounds, which read as follows:

HO Suen-ko trading as Sun Yip Engineering Co.,  You are charged that being a Class 1 & Class 2 registered fire service installation contractor, you were on 8 March 2023 convicted by the Kowloon City Magistrates’ Courts of contravening Regulation 9(3)(b)  of the [I&E Regulations] …

The details were that you conducted the annual inspection for the fire detection system and sprinkler system of Hotel Hart, 4 Hart Avenue, Tsim Sha Tsui, Kowloon and issued a certificate of fire service installation and equipment on 21 March 2022 which revealed that the systems conformed with the Fire Services Department (‘FSD’)  requirements, but in fact, (i) the fire service panel failed to transmit fire signals through direct telephone line; (ii) the metal indication plates of the fire service inlet and sprinkler inlet were incorrect; and (iii) no proper indications at the enclosures of the sprinkler gate valve, fire service inlet and sprinkler inlet, which the systems failed to comply with FSD requirements.

It appears to the Director of Fire Services that the conviction of such an offence has made your continued inclusion in the register of fire service installation contractors prejudicial to the due administration of the [Ordinance].

19.  Also on 11 August 2023, the Director sent the Brief Facts and other relevant materials to the Applicant.  Not rehearse them in this Decision, the Brief Facts identify in some detail the matters giving rise to the complaint, leading both to the prosecution in the Magistrates’ Court and the referral of the matter to the Board.  The Applicant was also subsequently provided with the Board’s Hearing Procedures.

20.  There is a certified transcript of the Inquiry Hearing, which took place on 13 September 2023.  From that transcript, it is apparent that:

(1)  After the Statement of Grounds were read out, the Applicant stated that he had pleaded guilty at court and subsequently admitted the Statement of Grounds.

(2)  After the Brief Facts were read out, the Applicant stated that he agreed with the Brief Facts.

(3)  After a short adjournment, the Inquiry Hearing resumed and the Legal Adviser announced the verdict.

(4)  The Board was satisfied on the evidence presented that the Applicant had been convicted by the court of improper conduct or negligence in relation to annual maintenance work, making the Applicant’s continued inclusion in the Register prejudicial to the due administration of the Ordinance.

(5)  Hence the Board was also satisfied that the particulars of the charge had been satisfactorily proved, and the Applicant was convicted by the Board unanimously.

(6)  The Applicant was invited to make mitigation submissions, which he did.

(7)  After mitigation, the Applicant admitted one previous disciplinary record of a similar nature, when the Applicant’s name had been removed from the Register for a period of two months.

(8)  Subsequently, the Legal Adviser announced that the Board had considered the various materials, including the Applicant’s mitigation submissions, and announced the decided Suspension Order.

21.  As was confirmed in answer to the Director’s enquiries made of the High Court, the Applicant did not file any appeal to the CFA on or before the deadline for so doing, namely 13 October 2023.

22.  Instead, the Applicant commenced the present application for leave to apply for judicial review on 12 October 2023.

23.  The Suspension Order took effect on 16 October 2023, and the Applicant was informed of that fact by the Board on the same date.

24.  On 16 October 2023, the Applicant’s solicitors wrote to the Board claiming that they had already provided a copy of the “appeal documents” submitted to the Court and the Board on 12 October 2023.  The relevant documents attached to that letter were, however, the Form 86 in the present application for leave to apply for judicial review.

25.  There followed a correspondence in which the Applicant’s solicitors appeared to acknowledge the error, and to ask for an extension of time for filing an appeal in an HCMP application.  The Board responded that the Suspension Order had already taken effect and that the Board does not have power to extend the statutory appeal period.  The Board also subsequently refused the Applicant’s solicitors’ request to enter a Consent Summons to transfer the HCAL proceedings to an HCMP action, with the Form 86 being deemed sufficient notice of appeal against the Suspension Order.

26.  The period of suspension under the Suspension Order was to – and did – expire on 15 January 2024.

D.  Grounds of Review

27.  In the Form 86, which was professionally drawn by the Applicant’s solicitors, the intended grounds of review are identified as follows:

(1)  The Board failed to take into consideration relevant submissions made by the Applicant in the disciplinary hearing, in particular:

1.  The Board failed to carry out its duty to inquire by failing to consider matters put forth by the Applicant (legally unrepresented and appeared in person in the disciplinary hearing)  in mitigation.

2.  The Applicant submitted briefly in mitigation that it was not within their control that the direct link to the Fire Services Department (the “Direct Line”)  failed to operate when a fire broke out.

3.  The Applicant have done the annual maintenance, inspection and certification (the “Routine Check”)  in March 2023 at 4 Hart Avenue, Tsim Sha Tsui, Kowloon, Hong Kong (the “Building”)  as required by section 9 of the Fire Service (Installations and Equipment)  Regulations (Cap. 95B)  and Part I Clause 1.10 of the Code of Practice for Inspection, Testing and Maintenance of Installations and Equipment.  After which a Certificate was forwarded to the Director of Fire Services.

4.  The Applicant confirmed and ensured the normal operation and functioning of the Direct Line by running multiple tests on the telephone line during the Routine Check.

5.  There was a considerable amount of time (i.e. 6 months)  (the “6 Month Period”)  in between i) the Routine Check; and ii) the inspection that was carried out in August 2023 by the relevant division under the Fire Services Department following a fire that broke out at the Building in or around August 2023.

6.  The Applicant submitted that there had been renovation works (the “Renovation”)  at the Building during the 6 Month Period, it follows that anything could have happened that was not in the control of the Applicant that may have resulted in the malfunctioning of the delicate Direct Line system.

7.  Albeit this not being a criminal matter, the situation above is comparable to a “reverse plea” situation in a criminal matter in which a guilty plea entered is not an unequivocal one by reason of the existence of qualifications made by the Applicant.  This was a situation of procedural impropriety in which the Board failed to provide the Applicant the right to a fair hearing before making the Order.

(2)  The Board erred in law by considering irrelevant considerations when passing the Suspension, in particular:

1.  The Board, in its reasoning for the Suspension, found that the invertedness of the metal identification plate placed at the Fire Service inlet was in contravention of the Code of Practice for Minimum Fire Service Installations and Equipment (the “Installations Code”).

2.  Clause 5.14(g)  of the Installations Code specified that:

“Each inlet shall be affixed with a metal identification plate raised or engraved with English and Chinese characters.  The frontage of each inlet enclosure shall be clearly and permanently indicated in English and Chinese characters – “FS INLET” (消防入水掣)  of at least 50 mm high.”

3.  The metal identification plate that satisfies all requirements stated above but only being upside-down does not impede on the clarity or permanence of the English and Chinese characters shown on it and therefore solely from the metal identification plate being upside-down does not render the Applicant being in contravention of the Installation Code.

4.  In any event, the Applicant ensured the proper installation of the metal identification plate at installation (the metal identification plate was upright at installation)  and the Renovation during the 6 Month Period at the Building meant that anything could have happened that was not in the control of the Applicant that may have resulted in the invertedness of the metal identification plate.

(3)  As above, the Board had failed to carry out its duty to inquire and to provide the Applicant with a fair hearing.  Further, the Board had erred in law by considering irrelevant considerations.  In the circumstances, the Court should allow this JR application and grant the relief sought by the Applicant.

28.  I shall refer to these points as intended Ground 1, Ground 2, and Ground 3 respectively.  It can be seen that the grounds seek to raise what might be called traditional judicial review complaints, namely challenging the decision-making process.

E.  Analysis

E.1  Alternative Remedy

29.  Applicants are routinely refused permission to proceed with an application for leave to apply for judicial review where some other form of legal proceedings or avenue of challenge is available and should be used.  This is because judicial review is a remedy of last resort.  Where, as in this case, there is a statutory appeal procedure, the Court exercising its judicial review jurisdiction would ordinarily regard that appeal procedure as the appropriate avenue to be pursued, save in exceptional circumstances.

30.  Though there is no exhaustive definition of “exceptional circumstances”, it has been recognised that an appeal which is adequate to deal with all of the alleged flaws in the original proceedings will weigh heavily against the grant of leave for judicial review.

31.  From the correspondence post-dating the application, it seems possible that the Applicant and his solicitors were unaware of the remedy of a potential appeal under the statutory regime.  Though it can be noted that the present application for leave to apply for judicial review was issued on the day before the expiry of the 30-day period for an appeal, the arguments as framed on the Form 86 plainly seek to identify grounds for judicial review rather than grounds of appeal.

32.  But, in any event, I accept Mr Lee’s submission that the power of the Court in hearing an appeal under Regulation 12 of the regulations is wider than the Court exercising its supervisory jurisdiction by way of judicial review.  In judicial review, the Court is concerned broadly with the integrity of the decision-making process, whereas on the statutory appeal the CFI may confirm, reverse or vary the order appealed, and may exercise any power which the Board may have exercised.

33.  I see no exceptional circumstances in this case why an application for leave to apply for judicial review should be entertained, when there was available to the Applicant the statutory appeal procedure.

34.  I also give no weight to the fact that the Applicant was self-represented at the Inquiry Hearing.  Prior to the deadline for giving notice of any intended appeal, the Applicant was legally represented by the solicitors who drafted and filed the Form 86.

35.  Hence, the application for leave to apply for judicial review stands to be dismissed on this basis alone.

E.2  No Merit

36.  In any event, there is no reasonably arguable intended ground of review identified, with any reasonable prospect of success.

37.  All intended grounds of review in essence suggest some procedural impropriety.

38.  Ground 1 suggests that the Board failed to make proper enquiries of matters put forward by the Applicant in mitigation, in a situation which is comparable to a “reverse plea” situation in a criminal matter.  However, I agree with Mr Lee that there is no merit in this ground.

(1)  The suggestion that this is a “reverse plea” situation is misconceived.

(2)  The Applicant was convicted by the Magistrate on his own guilty plea, and would have agreed the brief facts upon which the conviction was put forward and on which he was sentenced.

(3)  The Applicant was provided with the Hearing Procedures prior to the Inquiry Hearing, and the procedures relevant to a contractor who admits the allegations in the Statement of Grounds were followed at the Inquiry Hearing.

(4)  The Applicant confirmed his agreement to both the Statement of Grounds and the Brief Facts, which had been read out to him before he confirmed his agreement to them.

(5)  The Applicant made mitigation submissions, which were expressly considered by the Board in detail.

(6)  During the mitigation submissions, the Chairman of the Board asked for various documents and sought confirmation or sought clarifications in respect of the submissions.

(7)  There is no arguable basis for suggesting that the Board should have made further or different enquiries in the circumstances.

(8)  Any suggestion that there was a failure to provide the Applicant with the right to fair hearing is untenable.

(9)  The disciplinary punishment imposed on the Applicant was within the statutory powers of the Board.

(10)  Nor is the disciplinary punishment imposed on the Applicant so severe as to be beyond any rational relationship to the seriousness of the offence and the situation of the Applicant.

(11)  There is no arguable procedural impropriety on Ground 1.

39.  Ground 2, phrased as an alleged error of law, suggests that the Board committed the procedural impropriety of taking into account irrelevant considerations when making the Suspension Order.  However, I agree with Mr Lee that there is nothing warranting the Court’s intervention on public law grounds.  As Mr Lee submits, the particulars offered in support of Ground 2 are, at best, factually incorrect, and there is no evidence suggesting that the Board has taken into account irrelevant considerations in responding to the Applicant’s submissions and situation, not least where he admitted his own negligence and asked for leniency in punishment.  There is no arguable error of law or procedural impropriety on Ground 2.

40.  Ground 3 is essentially a reiteration of Grounds 1 and 2 and adds nothing to the analysis.  It cannot improve upon those grounds, and it does not independently identify a reasonably arguable ground of review.

F.  Result

41.  The Applicant had an alternative remedy of an appeal, where the CFI has different and broader powers than those exercised on an application for judicial review.  No exceptional circumstances have been demonstrated as to why leave should be granted for judicial review notwithstanding that available alternative remedy.

42.  Not least because the point has not been further pursued in these proceedings, I see no need to address any argument that the Form 86 should be taken as having commenced a statutory appeal – save to say that the grounds raised do not look like grounds of appeal.

43.  Further, and in any event, the Applicant has failed to identify any reasonably arguable ground of review with any realistic prospect of success.

44.  I also consider that – where the relevant period of suspension under the Suspension Order has by now expired – the application is in any event academic.

45.  For these various reasons, individually or cumulatively, the Applicant’s application for leave to apply for judicial review is refused.

G.  Costs

46.  I see no reason why the costs should not follow the event and why the Applicant should not bear the Director’s costs of responding to the application.  Notwithstanding that such an application is initiated on an ex parte basis, I gave directions for the Director’s involvement, and I have been assisted by the materials provided on his behalf by Mr Lee.

47.  In this context, I have also taken into account that the available alternative of an appeal was the subject matter of debate between the parties in the correspondence after this application was filed, but before the Director incurred time and costs in providing the initial response – and where the Applicant was content to give consent to the slippage and timetable for submissions, including any reply to the initial response, which ultimately the Applicant must have chosen not to file.

48.  I will summarily assess those costs on paper. The Director should provide a Statement of Costs for summary assessment within 14 days, and the Applicant shall have 14 days thereafter to file any List of Objections.  I will then perform the assessment.