WEI LINGHUI v. HONG KONG FEDERATION OF INSURERS INSURANCE AGENTS REGISTRATION BOARD AND ANOTHER

HCAL 2759/2018

[2019] HKCFI 2094

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2759 OF 2018

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J U D G M E N T

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INTRODUCTION

1.  This is an application for judicial review of:

(1)   the decision of the Appeals Tribunal (the “Tribunal”) of the Hong Kong Federation of Insurers (“HKFI”) contained in a letter dated 19 November 2018 (“the Appeal Decision”) dismissing the Applicant’s appeal against the decision of the Insurance Agents Registration Board (“the Board”) made on 19 January 2018 that the Applicant be de-registered as an insurance agent for a period of 3 years; and

(2)   the decision of the Board dated 20 November 2018 (“the Implementation Decision”) to implement the Board’s decision to de-register the Applicant as an insurance agent for a period of 3 years commencing on 26 November 2018.

BASIC FACTS

2.  Any person seeking to be registered as an insurance agent is required to complete and submit to the Board an application form.  The application form requires the applicant to declare that he/she has read the Code (more particularly described in paragraph 20 below), and undertake to the Board to comply with the requirements of the Code.  It further requires the applicant to confirm that he/she has completed education to a level of Form 5 or equivalent, and submit a copy of his/her academic qualification as proof.

3.  On 1 March 2013, the Applicant applied for registration with the Board as an appointed insurance agent of AIA Company Limited / AIA International Limited (“AIA”).  In support of that application, she submitted a signed application form containing the aforesaid declaration and confirmation, and a copy of a certificate (“the Graduation Certificate”) titled 《高等教育自學考試畢業証書》 issued, or purportedly issued, jointly by Zhengzhou University (鄭州大學) and the Henan Province Higher Education Self-taught Examination Committee (河南省高等教育自學考試委員會).  The Graduation Certificate:

(1)   states that the Applicant participated in, and passed, a higher education examination for a self-taught professional secretarial course (高等教育文秘專業專學科自學考試);

(2)   states that the Applicant was graduated in June 1996;

(3)   bears the certificate number of 992561; and

(4)   is dated June 1996.

4.  The application was successful, and the Applicant was registered as an appointed insurance agent of AIA on 14 March 2013.

5.  By a letter dated 23 June 2017, the Office of the Commissioner of Insurance (“OCI”) informed the Board that, based on information provided by the school or the education bureau concerned, the authenticity of the Graduation Certificate was doubtful.  Enclosed with OCI’s letter were:

(1)   a letter from OCI to Zhengzhou University dated 5 May 2017 requesting the university to confirm the authenticity of the Graduation Certificate (with the name of the Applicant and details of the Graduation Certificate provided in that letter, and a copy of the Graduation Certificate attached thereto); and

(2)   a reply email (“the Email”) from Zhou Guoqiang (周國強), who claimed himself to be a staff member of the Zhengzhou University Self-taught Examination Office (鄭州大學自學考試辦公室工作人員), dated 1 June 2017.

6.  In the Email, it was stated that the Henan Province Students Admission Office (河南省招生辦公室) had confirmed that the certificate number of the Graduation Certificate did not relate to the Applicant (此証書編號不是此人), and the Graduation Certificate was a false certificate (此証書為假証).  The Email also stated that the Zhengzhou University Self-taught Examination Office did not have authority to issue any proof (無權出具任何証明) that the Graduation Certificate was a false document, and if OCI wished to have material proof (証明材料), it should make enquiries with the Henan Province Students Admission Office.

7.  By a letter to the Applicant dated 18 July 2017, the Board referred to (inter alia) the Email, and required the Applicant to respond, on or before 18 August 2017, to the allegations that she had (i) made an incorrect statement or declaration, and (ii) used a false document, in her application for registration as an appointed insurance agent of AIA.

8.  On 14 August 2017, the Board granted to the Applicant an extension of time up to 18 October 2017 to respond to the said allegations, which she did by a letter dated 10 October 2017.  In that letter, the Applicant stated that she had gone back to Zhengzhou University to retrieve proof of her academic qualification.  However, due to the high turnover of teachers and staff at the university, she was unable to communicate or find the teachers or principal at the time of her study and obtain proof of her academic qualification.  Nevertheless, the Applicant provided to the Board another certificate (高中的《學歷證明》文件) to prove that she had attained the required academic qualification for registration as an insurance agent (see paragraph 21(3) below).

9.  On 30 October 2017, the Board decided that the aforesaid allegations against the Applicant were established (“the Substantive Decision”).  In coming to that decision, the Board took the view that:

(1)   the evidence of Zhengzhou University was credible and should be accepted;

(2)   the Applicant did not refute the evidence of Zhengzhou University, her only explanation being that due to the high turnover of the teachers and staff of that university she was unable to make effective communication with them; and

(3)   that the Applicant had used a false Graduation Certificate was an undisputable fact, and her production of another certificate to prove her academic qualification could not alter that fact.

10.  The Board conveyed the Substantive Decision to the Applicant by a letter dated 8 November 2017, and invited the Applicant to make submission by way of mitigation, which she did on 15 November 2018.  The Applicant reiterated that she did not have any dishonest intention and repeated, inter alia, what she had stated in her earlier letter dated 10 October 2017.

11.  On 19 January 2018, the Board decided that the Applicant should be de-registered as an insurance agent for a period of 3 years (“the Sanction Decision”), and informed the Applicant of the same by a letter dated 25 January 2018.

12.  Following the Applicant’s lodging of an appeal (“the Appeal”) against the Board’s decision of 19 January 2018 and upon her solicitors’ request, on 14 February 2018, the Board decided to suspend the Sanction Decision pending the determination of the Appeal.

13.  The Appeal was supported by, inter alia, the Applicant’s affirmation dated 14 February 2018.  The following grounds were put forward in that affirmation:

(1)   The Board erred in accepting the Email purporting to be from an employee of the Zhengzhou University Self-taught Examination Office as evidence originating from Zhengzhou University, even though no authorization, or the name or position of the writer, could be found in the Email.

(2)   The Board erred in accepting evidence from the Zhengzhou University Self-taught Examination Office on the authenticity of the Graduation Certificate, when the issuer of the Graduation Certificate was Zhengzhou University (jointly with the Henan Province Higher Education Self-taught Examination Committee).

(3)   The Board based its decision on unsound hearsay evidence from an unsatisfactory and unreliable source.

(4)   The Board erred in accepting evidence allegedly from the Henan Province Students Admission Office on the authenticity of the Graduation Certificate, when the issuer of the Graduation Certificate was the Henan Province Higher Education Self-taught Examination Committee (jointly with Zhengzhou University).

(5)   The Board failed to fully consider the Applicant’s explanation and wrongly came to the conclusion that she did not refute the allegations against her.

(6)   The Board acted carelessly or recklessly and without any evidential basis in concluding that it was indisputable that the Graduation Certificate was false.

14.  On 7 November 2018, the Tribunal unanimously decided to dismiss the Appeal without a hearing.  In the Tribunal’s Written Reasons for Decision, the following reasons were given:

(1)   Mr. K M Chong:

“The issue raised by the Appellant is not consistent with her letter to the Registration Board of 15 November 2017. There [are] no merits in the appeal.”

(2)   Mrs Katherine Shum:

“Ms Wei’s use of forged academic qualification is established. Her lame excuse in trying to overturn the decision showed that she did not understand the seriousness of her action.”

(3)   Mr Simon Tang:

“The Appellant had not produced any evidence that the copy purported 畢業證書submitted to the Insurance Agents Registration Board was a genuine document.”

15.  By a letter dated 19 November 2018, the Tribunal informed the Applicant’s solicitors that the Tribunal had unanimously decided to dismiss the Appeal without a hearing.

16.  On 20 November 2018, the Board made the Implementation Decision.  On 28 November 2018, the Tribunal provided a copy of the Written Reasons for Decision dated 7 November 2018 to the Applicant’s solicitors.

17.  On 4 December 2018, the Applicant made the present application for leave to apply for judicial review of the Appeal Decision and Implementation Decision.  On 5 December 2018, the court granted the Applicant leave to apply for judicial review upon consideration of papers only.

THE REGULATORY FRAMEWORK

18.  The insurance industry in Hong Kong is governed by the Insurance Ordinance, Cap 41 (“the Ordinance”).  Prior to 26 June 2017 when the first stage of amendments under the Insurance Companies (Amendment) Ordinance 2015 took effect, the Government department responsible for regulating insurers was OCI.  On 26 June 2017, the Insurance Companies Ordinance was renamed the Insurance Ordinance, and responsibility for regulating insurers passed from OCI to the Insurance Authority (“IA”).

19.  HKFI, established on 8 August 1988, is a self-regulatory body of insurers to advance and promote the development of insurance business in Hong Kong.  HKFI’s articles of association provide for the establishment of the Board.  Currently, HKFI and the Board bear primary responsibility for regulating insurance agents in Hong Kong.  In due course, IA will take over the duties of HKFI and the Board in relation to the regulation of insurance agents.

20.  Under Section 65(1) of the Ordinance, a person shall not hold himself out as an insurance agent unless he is an “appointed insurance agent”, which is defined to mean “an insurance agent appointed by and registered with an insurer as an agent”.  Under Section 67(1) of the Ordinance, HKFI is required, with the approval of IA, to issue a code of practice (“the Code”) for the administration of insurance agents.  The Board is tasked with the implementation and administration of the Code.

21.  Under the Code:

(1)   An insurer shall obtain the confirmation of the Board in accordance with the Code before confirming the appointment of an insurance agent, and must ensure that each of its appointed insurance agents is registered with the Board for the relevant Line of Insurance Business to be engaged in (Clause 14).

(2)   Unless the Board is satisfied that a person is fit and proper to be or continue to be registered as an insurance agent, it shall not confirm the appointment of that person as an insurance agent (Clause 43(f)).

(3)   A person must meet certain minimum qualifications before he may be considered by the Board to be fit and proper to be registered as an insurance agent (Clause 61).  One of the qualifications is that he must have completed education to a level of Form 5 or equivalent (subject to an exception which is not relevant to the present case) (Clause 61(c)).

(4)   An insurance agent shall at all times conduct business in good faith and with integrity (Clause 74).

22.  Clauses 44 to 48 of the Code contain provisions relating to the procedures for determining (i) the fitness and properness of, inter alia registered insurance agents, and (ii) complaints against them.  The following brief summary (omitting provisions which are not relevant, or have no application, to the present case) shall suffice for the present purpose:

(1)   Where the Board becomes aware of any matter or complaint which may involve a breach of the Code or which may render a registered insurance agent not fit or proper to remain appointed and registered as an insurance agent, the Board may investigate the matter or complaint (Clause 44(a)).

(2)   Where the Board considers that it is likely to take disciplinary or other action if the matter or complaint is proven, the Board shall provide the insurance agent with an opportunity to make representations in such manner and form as the Board considers appropriate (Clause 44(c)).

(3)   When all representations concerning the matter or complaint have been considered by the Board, and the Board is of the view that either there has been a breach of the Code or the matter at issue renders the insurance agent not fit and proper to be or continue to be registered as an insurance agent, the Board may take disciplinary or other action in the manner set out in sub-clause (e) (Clause 44(d)).

(4)   Disciplinary or other action may include suspending or terminating the appointment of an insurance agent (Clause 44(e)(ii)). Any insurance agent whose appointment has been terminated in such circumstances will have his/her registration cancelled and will be barred from appointment and registration as an insurance agent for a specified period as determined by the Board (Clause 44(e)).

(5)   When taking disciplinary or other action, the Board shall serve upon the insurance agent concerned a notification of the disciplinary or other action and a statement of the grounds thereof (Clause 44(f)).

(6)   The Board may, in its discretion, vary the procedures provided for in Clauses 44 to 47 in any particular case where the Board considers it appropriate to do so (Clause 48).

23.  Clauses 49 to 56 of the Code establish an appeal process which may be followed by any party who is the subject of disciplinary or other action by the Board.

(1)   There shall be an “Appeals Tribunal” (ie the Tribunal) who shall determine appeals against decisions of the Board made under the Code.  The decisions of the Tribunal shall be final (Clause 49).

(2)   The Tribunal may determine its own procedures, but otherwise an appeal shall be conducted and determined in accordance with the Appeals Tribunal Proceedings Rules as amended from time to time (Clause 50).

(3)   On determining an appeal, the Tribunal may confirm, vary or reverse the decision being appealed or substitute such other decision, consistent with the powers of the Board, as it thinks fit.

24.  The Appeals Tribunal Proceedings Rules provide, inter alia, as follows:

(1)   The Tribunal shall comprise not less than 3 and not more than 20 members nominated by HKFI and confirmed by IA.  The Tribunal shall elect its own chairperson for each individual hearing of appeal.  The quorum required to determine an appeal shall consist of not less than 3 members (Rule 1).

(2)   An appeal regarding the decision of the Board shall be in writing and singed by the appellant and shall be sent to the Tribunal together with an affidavit by the appellant stating the ground(s) on which he relies in support of his appeal (Rule 5(1)).

(3)   The Tribunal shall not entertain any appeal unless (a) in the opinion of the Tribunal, the appeal has been made by a person adversely affected by a decision of the Board, and (b) the appeal is made within 28 days after the decision appealed against was made with the grounds stated therein supported by supporting documentation (if any) (Rule 5(2)).

(4)   If the Tribunal decides to entertain an appeal under Rule 5, the Tribunal shall inform the Board, and the Board shall transmit to the Tribunal all documents received by the Board relating to the decision appealed against within 21 days of such notification (Rule 6).

(5)   The Tribunal may at any time require the appellant or the Board to supply such further information and documents in his or its possession or under his or its control relating to the appeal as it thinks fit (Rule 7).

(6)   If the Tribunal is of the opinion that the grounds of appeal are not supported, the Tribunal may dismiss the appeal without a hearing (Rule 8(2)).

(7)   If the Tribunal is of the view that a hearing is required, the Tribunal may proceed to fix a hearing date (Rule 8(3)).

(8)   The Tribunal shall have the power to adopt wherever possible a simplified or expedited procedure and in any case shall have the widest discretion allowed by law to conduct the proceedings so as to ensure the just, expeditious, economical, and final determination of the appeal (Rule 18).

(9)   The Tribunal may dispense with any requirements of the Rules respecting notices, affidavits, documents, service, or time, in any case where it appears to the Tribunal to be just so to do (Rule 21).

DISCUSSION

25.  4 grounds of judicial review are raised in the Form 86, namely:

(1)   illegality and irrationality;

(2)   breach of duty to investigate (Tameside duty);

(3)   procedural unfairness (absence of oral hearing before the Board and the Tribunal); and

(4)   failure to give adequate reasons.

26.  It is not, in my view, necessary to analyse these 4 grounds separately, which overlap to some extent.  There are no merits in the complaint that the Appeal Decision and the Implementation Decision were illegal (in the sense of absence of lawful power to make the relevant decisions), or that the absence of an oral hearing before the Board gave rise to any procedural unfairness when the Applicant was expressly told by the Board in the letter dated 18 July 2017 (referred to in paragraph 7 above) that she could request for an oral hearing but she did not ask for one.  The forensic complaints:

(1)   about the differences, or discrepancies, between –

(a)   Zhengzhou University and the Zhengzhou University Self-taught Examination Office, or

(b)   the Henan Province Higher Education Self-taught Examination Committee and the Henan Province Students Admission Office, or

(2)   that the name or position of the writer could not be found in the Email,

are also minor points which do not, by themselves, render the Board’s decision that the Graduation Certificate was a false document irrational.  I should mention that the writer of the Email, namely, Zhou Guoqiang (周國強), was clearly stated on the face of that document and, as pointed out by Tam Chung Ho Peter (at paragraph 31 of his First Affirmation) the email address of the sender (zgq@zzu.edu.cn) appeared to be consistent with the Email having been sent by a staff of Zhengzhou University.  I also do not consider it to be impermissible, as a matter of principle, for the Board to take into account hearsay evidence contained in the Email (namely, the Henan Province Students Admission Office had confirmed that the certificate number of the Graduation Certificate did not relate to the Applicant, and the Graduation Certificate was a false certificate).

27.  The difficulty that I have in this case is the Board’s failure to seek proper proof that the Graduation Certificate was a false document, when the Email itself made it clear that neither the Zhengzhou University Self-taught Examination Office (which I am prepared to assume could be equated with Zhengzhou University for the present purpose), nor the writer of the Email (Zhou Guoqiang), had the power or authority to provide proof that the Graduation Certificate was a false document, and directed the recipient of the Email to approach the Henan Province Students Admission Office if it wished to have “material proof” of that matter.  Bearing in mind the importance of the proof (which went to the heart of the matter, ie whether the Graduation Certificate was a genuine or false document), the absence of any indication that it would be a difficult or time-consuming exercise to obtain the relevant proof from the Henan Province Students Admission Office, the seriousness of the allegations raised against the Applicant, as well as the serious consequences that could flow from a finding that the Applicant used a false document in her application for registration as an insurance agent, it seems to me that no reasonable tribunal, properly directed on the fact and law, would have failed to take the extra step of seeking the relevant proof from the Henan Province Students Admission Office (either by itself or through OCI/IA), if only to exclude the possibility of an innocent mistake.  In my view, the Board’s failure to do so rendered the Substantive Decision unreasonable in the Wednesbury sense.

28.  In so far as the Appeal Decision is concerned, the Tribunal’s “Written Reasons for Decision” wholly failed to deal with the grounds of appeal raised by the Applicant in her affirmation dated 14 February 2018.  The reasons given amount to nothing more than assertions that the appeal had no merits, that the Applicant had used a false academic qualification, and the Graduation Certificate was a false document.  The reason given by Mr Chong, namely, that the issue raised by the Applicant in the Appeal was not consistent with her letter to the Board of 15 November 2017, is also problematic.  Assuming that the letter referred to by Mr Chong is the Applicant’s letter to the Board dated 15 November 2017 (containing her mitigation), it is unclear in what way or aspect it is said “the issue raised by the Applicant [was] not consistent with her letter”.

29.  While reasons given by an administrative tribunal for a decision do not have to be lengthy or comprehensive, they should at least demonstrate that the tribunal has properly grasped the issues before it and dealt with them in a proper and intelligible manner.

(1)   In The Queen v Director of Immigration and the Refugee States Review Board, ex p Do Giau [1992] 1 HKLR 287, where reasons were required to be given, Mortimer J (as he then was) said at p 312 that such reasons as were given “had to deal with the substantial issues before him and had to be proper, adequate and intelligible”.

(2)   In Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority (1997-98) 1 HKCFAR 279, where reasons again were required to be given, the following general principles were stated by Li CJ:

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

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

(3)   In Capital Rich Development Ltd v Town Planning Board [2007] 2 HKLRD 155, Stock JA (as he then was) stated that following:

[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’s Judicial Review Handbook, 4thed., paras. 62.1.5 to 62.1.9.

[98] 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. That, so it seems to me, is the problem – in my judgment, the sole problem – with which the respondent is faced in this appeal.

(4)   In Ng Wing Hung v Commissioner of Registration, HCAL 125/2006 (unreported, 4 July 2007), Chu J (as she then was) stated at [51] as follows –

“While it is within the power and remit of the Tribunal to assess and to decide on the weight to be given to the evidence before it, it is equally the responsibility of the Tribunal to demonstrate by its reason and decision that it had properly addressed the issues raised before it as to the quality and reliability of the evidence. In light of the rather substantial and important challenges made by the applicant on the 4 BEEA letters and the documents attached to it, notably the application form and the statement of Mr Chan, it would not be sufficient for the Tribunal merely to indicate that full weight may be attached to the 4 BEEA letters and that with these letters, the Commissioner had discharged his burden of proof. The fact that the applicant had not given evidence may be a relevant factor when the Tribunal came to assess the evidence. However, it is simply unclear form the decision of the Tribunal whether this had been considered by it. In any event, this does not excuse the Tribunal from having to address the arguments and issues raised by the applicant on the reliability of the 4 BEEA letters and the documents provided by the BEEA. In my view, the Tribunal’s conclusion is therefore unreasonable in the Wednesbury sense.”

30.  The judgment of Stock JA in Capital Rich Development Ltd shows that the same public law requirements on the adequacy of reasons are applicable where (i) reasons are required, or (ii) they are in fact provided.  The judgment of Chu J in Ng Wing Hung shows that where the reasons given are inadequate, the decision would be regarded as Wednesbury unreasonable.

31.  In the present case, I consider it to be clear that the reasons given by the Tribunal for the Appeal Decision are inadequate, and thus the Appeal Decision should be quashed on the ground of Wednesbury unreasonableness.  It follows from the above conclusions regarding the irrationality of the Substantive Decision and Appeal Decision that the Sanction Decision and Implementation Decision cannot stand either.

WHETHER RELIEF SHOULD BE REFUSED

32.  Since the remedy of judicial review is discretionary, the court may refuse to grant relief even where one or more grounds of judicial review are made out if it would be futile to grant relief, eg where the proper relief would be to quash the original decision and remit the matter to the decision-maker for fresh consideration and it is clear that a rehearing would make no difference because the decision-maker would inevitably reach the same conclusion.  However, the court will not lightly reach the conclusion that the outcome would inevitably be the same, having regard to the fact that the decision-maker, in a rehearing, is required to approach the matter with an open mind.

33.  In the present case, Mr Wong (on behalf of the Respondents) submits that relief should not be granted in the event that the court accepts one or more grounds of judicial review of the Appeal Decision and the Implementation Decision, because it is inevitable that the Board and Tribunal would come to the same conclusion that the Graduation Certificate is a forged document having regard to the additional evidence obtained or produced by the parties subsequent to the date of the application for judicial review.

34.  The relevant additional evidence before the court consists of:

(1)   A notarial certificate (“the Notarial Certificate”) issued by the Nanyang Wandu Notary Public Office of Henan Province (中華人民共和國河南省南陽市苑都公証處) (“the Wandu Notary Office”) dated 20 December 2018 certifying (inter alia) that the Graduation Certificate was an authentic document (“Document (1)”).  The Notarial Certificate was itself certified by the Department of Consular Affairs of the Ministry of Foreign Affairs of the PRC (中華人民共和國外交部領事司).

(2)   A certificate issued by the Henan Province Students Admission Office dated 17 January 2019 stating that the Graduation Certificate was not issued by the Henan Province Higher Education Self-taught Examination Committee (河南省高等教育自學考試委員會) (“Document (2)”).

(3)   An explanation from the Wandu Notary Office dated 13 May 2019 stating that Notarial Certificate was issued based on some false representation (弄虛作假) made by the Applicant’s agent, and the Notarial Certificate had been revoked by it (“Document (3)”).  Attached to the explanation is a decision of the Wandu Notary Office dated 10 May 2019 revoking the Notarial Certificate (“Document (4)”).  It is also stated in that decision that the Applicant and her agent had provided false information or materials (虛假證明材料) to obtain the Notarial Certificate.

(4)   A letter from the Nanyang Justice Bureau of Henan Province (南陽市司法局) dated 15 May 2019 stating that upon review by the Wandu Notary Office, it was found that the Graduation Certificate was a false document, and the Notarial Certificate had been revoked and had no effect (“Document (5)”).

35.  Document (1) was obtained by the Applicant, while Documents (2) to (5) were obtained or produced by the Respondents.  Document (1) supports the authenticity of the Graduation Certificate, but the other Documents are to the opposite effect.  It is unclear from Documents (2) to (5) as to: (i) what were the information or materials originally provided by the Applicant and/or her agent which led to the issue of the Notarial Certificate by the Wandu Notary Office on 20 December 2018, and (ii) what false representation, information or materials were allegedly used by them to obtain the Notarial Certificate.  It is also unclear what investigations had been carried out by the Wandu Notary Office to reach the conclusion that the Graduation Certificate was a false document and the Notarial Certificate ought to be revoked.  While the certificate issued by the Henan Province Students Admission Office dated 17 January 2019 carries some weight in favour of the view that the Graduation Certificate is a false document, the court is not the primary decision-maker.  The weight that ought properly to be given to the aforesaid documents should be determined by the Board instead of by the court.  In all the circumstances, I do not consider that the court should deny relief to the Applicant even though it is likely, though by means inevitable, that the Board and Tribunal will reach the same conclusion regarding the authenticity of the Graduation Certificate.

DISPOSITION

36.  The application for judicial review is allowed. I make an order of certiorari to bring up to the High Court and quash the Substantive Decision, the Sanction Decision, the Appeal Decision the Implementation Decision, and remit the two allegations against the Applicant mentioned in the Board’s letter to the Applicant dated 18 July 2017 to the Board for fresh consideration in accordance with this judgment.

37.  I also grant leave to the Applicant to file and serve her 2^nd Affirmation dated 30 April 2019, and to the Respondents to file and serve the 2^nd Affirmation of Tam Chung Ho Peter dated 5 June 2019.

38.  The Applicant shall have the costs of this application for judicial review, as well as the costs incurred in relation to the Respondents’ summons dated 18 June 2019 for leave to file and serve the 2^nd Affirmation of Tam Chung Ho Peter, to be taxed if not agreed.