COMPANY A v. REGISTERED CONTRACTORS’ DISCIPLINARY BOARD

HCAL 1681/2023

[2026] HKCFI 1342

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1681 OF 2023

________________________

________________

___________________

J U D G M E N T

___________________

A.  Introduction

1.  By Form 86 dated 18 September 2023, now in the Amended Form 86 dated 17 October 2023, the Applicant mounted a judicial review challenge to two decisions of the Registered Contractors’ Disciplinary Board (“Board”) made in disciplinary proceedings before it (“Disciplinary Proceedings”), being:

(1)  The Board’s decision in its letter dated 20 June 2023 (“Decision”), allowing the 1^st Putative Interested Party Building Authority (“BA”) to prosecute or participate or otherwise take part in the Disciplinary Proceedings.

(2)  The Board’s decision in its letter dated 15 September 2023 (“Further Decision”), allowing or otherwise affirming the BA’s formulation of disciplinary charges and that the Applicant has to prepare its case as is.

2.  By way of relief, the Applicant seeks:

(1)  An order of certiorari quashing the Decision and/or the Further Decision.

(2)  An order to remit the Decision and/or the Further Decision to the Board for reconsideration with directions from this Court.

(3)  An order of mandamus that the Board do order that the BA be barred from further participating in the Disciplinary Proceedings.

3.  I gave directions to bring the matter to a rolled-up hearing. At that hearing, the Applicant was represented by Mr Ernest Ng, Mr Timothy Wong and Ms Athena Cheung of Counsel. The BA was represented by Ms Catrina Lam SC, leading Mr Charlie Liu of Counsel. As would be expected be expected, the Board took a neutral stance and did not appear.

4.  At the end of the hearing, I reserved my decision to be handed down later. This is my Judgment.

B.  Background

5.  The factual background is largely undisputed by the parties, and relates to a residential development project (“Project”) in Austin Station Site D at KIL No 11129, Kowloon (“Site”).

6.  The Project included the construction of 4 residential blocks and 2 link bridges, which included Link Bridge #3 connecting Tower 3 and Tower 5 (“Link Bridge”). The Applicant was a Registered General Building Contractor (“RGBC”) and the main contractor for the Project. Mr Edward Chan Sai Cheong was appointed as the Registered Structural Engineer (“RSE”). The 2^nd Putative Interested Party (“W”) was the Authorised Signatory. Wong & Ouyang (HK) Ltd was the Project architect (“Architect”).

7.  There were various material plans (“Approved Plans”) relevant to the Link Bridge, being:

(1)  On 30 September 2011, the BA approved the 3^rd Floor Framing Plan (Site D) D2061A, which referred to drawing D2069 (separately submitted) for the design of the Link Bridge.

(2)  On 15 October 2012, the BA approved the structural design calculation and plans for the superstructure amendment, including the Link Bridge Framing Plan (Site D) D2069A, containing a Typical RC Detail of Corbel for Bridge Support and a Bearing Load Schedule.

(3)  According to D2069A, the Link Bridge was supported by four corbels at its four corners, all suspended from the corresponding edge beams of the building walls.

(4)  D2069A included the dimensions of the corbels and the clearance reserved between the bottom surface of the bridge deck and the top surface of the corbels for installation of the bearings underneath.

(5)  The reinforcement bars for the edge beams connected to the corbels were defined in drawing Site D 3^rd Floor RC Details D4259A, approved by the BA on 17 June 2013.

8.  Subsequently, the Applicant received the Approved Plans, and formed the view (with specialist assistance) that it was not possible safely to comply fully with D2069A. It is said that following discussions between interested parties including the Applicant, revised size and levels of the corbels were confirmed by the Architect.

9.  The construction of the Link Bridge and its corbels thereafter proceeded, with periodic inspections.

10.  On 12 June 2014, there was a collapse incident at the Site (“Incident”), whereby two corbels at one end of the Link Bridge suddenly yielded and bent downwards. One end of the Link Bridge lost its supports and the whole Link Bridge collapsed. Suffice to say that the corbels and the Link Bridge were later reconstructed in accordance with certain revised approved plans.

11.  By Summons dated 12 June 2015, the Applicant was charged with an offence under section 40(2B)(b) of the Buildings Ordinance Cap (“BO”). W was charged with a similar offence. Both the Applicant and W pleaded not guilty to the charges, and the case proceeded to trial. The Applicant and W were both acquitted at trial.

12.  In around 2021, the BA referred the RSE to the Authorised Persons’, Registered Structural Engineers’ and Registered Geotechnical Engineers’ Disciplinary Board (“RSE Board”) under section 7(1) of the BO and brought disciplinary charges against the RSE. The RSE Board ruled that the charges were partially established.

13.  On 8 October 2019, the BA wrote to the Board stating that under sections 13(1) and (3) of the BO the BA was attaching a Notice against the Applicant and W, and requested a hearing be convened. The attached Notice, amongst other things, alleged that the Applicant was negligent or misconducted itself in building works in respect of the Site, and identified the particulars of allegations as against the Applicant. The Letter was copied to the Civil Litigation Unit of the Department of Justice (“DOJ”).

14.  The particulars alleged in the Notice were that the Applicant, being the RGBC appointed in respect of the Site, was negligent or misconducted itself in building works, in that:

(1)  it instigated, sanctioned, acquiesced in the failure to carry out, or failed to ensure that there was due performance of the construction of the corbels supporting the Link Bridge at the Site in accordance with the approved plans, i.e. they deviated in a material way from the works shown in the plans approved by the BA; and/or

(2)  it failed to ensure timely notification to the BA of the incident of the collapse of the Bridge which occurred on 12 June 2014, i.e. the BA was only notified of the collapse 4 days later on 16 June 2014.

15.  By letter dated 10 January 2020, the Applicant, amongst other things, requested clarification of the particulars of the charges. The letter asked in what respect the BA alleged that the construction of the corbels supporting the Link Bridge materially deviated from the Approved Plans.

16.  By letter dated 3 March 2020, the BA clarified the charges, stating that (1) the charge is about the 4 corbels supporting the Link Bridge, and (2) it was the BA’s case that the dimensions and/or levels of the 4 corbels supporting the Link Bridge were not constructed according to the approved plan dated 15 October 2012.

17.  By letter dated 7 April 2020, the Applicant requested the BA to consider discontinuing its notice to the Board. This was refused by the BA on 22 April 2020.

18.  By letter dated 4 November 2020, the Board notified the parties of the composition of the Board and sought information in relation to fixing a hearing date.

19.  By letter dated 17 November 2020, the Applicant once again sought clarification of the charges. The BA responded on 1 March 2021, stating that (emphasis in original) “it is our case that the Respondents misconducted themselves in building works in that the construction of the corbels deviated in material way from the works shown in the plans approved by the Building Authority” and that “there is no allegation of deviation of reinforcement arrangement from the typical details in the plan approved on 15 October 2012”.

20.  By letter dated 11 March 2021, the Applicant pointed out that “misconduct” and “deviated in material way from the works shown in the plans approved by the BA” were very serious allegations, and once again sought clarification on the particulars of the charge. The specific question posed was (italics in original): “Did your Department’s alleged “misconduct” and “material deviation” cause impairment to the load bearing capacity of the corbels in holding the footbridge in question?”. The letter was copied to two named individuals at the Civil Litigation Unit of the DOJ.

21.  On 30 April 2021, the BA replied stating that: “it is our stance that the material deviation from the approved plans involves the reinforcement of corbels being placed beneath the bottom reinforcing steel bars of the edge beam, resulting in the presence of a zone of unreinforced concrete between the interface of the corbels and the edge beam, load transfer from the corbels to the edge beam was thus affected and hence impaired the load bearing capacity”.

22.  By letter dated 6 May 2021, the Applicant again sought to know whether the impairment alleged had reduced the capacity of the corbels below the minimum limit to withstand the load of the footbridge. The BA again repeated its stance by letter dated 10 May 2021, i.e. that “the construction of the corbels deviated from the plans approved on 15 October 2012 in a material way. The top steel reinforcing bars (4T25) of the corbels were placed below the bottom steel reinforcing bars (6T40) of the edge beam, and the load path of transferring load from the corbels to the edge beam was fundamentally changed. The load from the corbels was forced to transfer through an unreinforced concrete zone by means of tensile action in concrete and was in violation of the basic design requirement, thus resulting in the failure of concrete under tensile force and subsequently the failure of the corbels”.

23.  By letter dated 14 May 2021, the Applicant stated (emphasis in original) “we now understand the BD’s basis of the misconduct charges is that the construction of the concrete corbels was a material deviation which resulted in the subsequent failure of the corbels”. It was noted that this basis was specifically clarified by the BD’s letter of 10 May 2021.

24.  On 15 July 2021, the Applicant further wrote to the BA stating (emphasis in original) “our deduction…is that BD is alleging that both Respondents have caused the failure of the corbels and hence caused the collapse of the footbridge”.

25.  On 6 July 2022, the BA informed the Board of its intention to revise the Notice to the Board, namely to withdraw the second charge against the Applicant as well as the allegation of negligence.

26.  On 22 December 2022, the Board directed the Applicant to make submissions on outstanding issues which would affect the arrangement of the hearing.

27.  On 4 January 2023, the Applicant made submissions in respect of the outstanding issues, which was later revised on 9 January 2023.

28.  On 20 June 2023, the Board re-fixed the hearing. Simultaneously, the Board decided in relation to the Applicant’s challenge of conflict of interest of the BA, that it was “satisfied with the BA’s submissions in their letter dated 2 March 2023 that it is the duty of BA to initiate disciplinary proceedings under section 13 of the BO. And the Board agree that there is no substance in the Respondents’ challenge”, this being the impugned Decision that is the subject matter of this judicial review.

29.  On 15 August 2023, the BA served its bundle of documents.

30.  On 8 and 12 September 2023 respectively, the Applicant wrote to the Board to seek an order that BA do further clarify its position.

31.  On 15 September 2023, the Board responded stating “the Board is of the view that you can prepare your case based on the submissions already filed by the BA and the Board cannot see the justification on making any further direction at this moment”, this being the impugned Further Decision.

32.  On 19 September 2023, the Applicant filed the Notice of Application for Leave to Apply for Judicial Review.

33.  On 29 September 2023, the Board vacated the hearing dates and stayed the Disciplinary Proceedings pending the resolution of these judicial review proceedings.

C.  Grounds of Review

34.  The Amended Form 86 raised three grounds of judicial review. In essence, the challenge raises issues of procedural impropriety as well as irrationality.

35.  In summary, the three grounds are as follows:

(1)  Ground 1: The Board failed to ensure the Disciplinary Proceedings were fair, by inter alia allowing the BA to continue to participate in the proceedings as a prosecutor and/or failing to ensure that the Applicant was provided with reasonable opportunity to answer the case or allegations made against it in the particular circumstances of the case (“Fair Hearing Ground”).

(2)  Ground 2: The Board failed to give adequate reasons in the Decision and/or the Further Decision (“Adequate Reasons Ground”).

(3)  Ground 3: The Decision and/or the Further Decision were irrational in the public law sense (“Unreasonableness Ground”).

D.  Relevant Statutory Provisions

36.  Section 13 of the BO provides for disciplinary hearings for contractors as follows:

13. Disciplinary proceedings for contractors

(1) The Building Authority may bring to the notice of a disciplinary board appointed under section 11 the matters set out in subsection (2) in relation to a registered general building contractor, a registered specialist contractor or a registered minor works contractor if the conduct referred to the disciplinary board may –

(a) render the contractor unfit to be on the register;

(b) make the further inclusion of the contractor in the register prejudicial to the due administration of this Ordinance;

(c) render the contractor deserving of suspension from the register, a fine or a reprimand;

(d) render the contractor unfit for certifying or carrying out minor works commenced under the simplified requirements;

(e) make further certification of or carrying out minor works commenced under the simplified requirements by the contractor prejudicial to the due administration of this Ordinance;

(f) render the contractor deserving of suspension from certifying or carrying out minor works commenced under the simplified requirements;

(g) render the contractor unfit for certifying any prescribed inspection, or certifying or supervising any prescribed repair, in respect of a window in a building;

(h) make further certification of any prescribed inspection, or certification or supervision of any prescribed repair, in respect of a window in a building by that contractor prejudicial to the due administration of this Ordinance; or

(i) render the contractor deserving of suspension from certifying any prescribed inspection, or certifying or supervising any prescribed repair, in respect of a window in a building.

(2) The matters referred to in subsection (1) are that the person –

(a) has been convicted by any court of an offence relating to building works or street works;

(b) has been negligent or has misconducted himself in building works or street works;

(c) has deviated in a material manner from a supervision plan without reasonable cause;

(d) has drawn up a supervision plan that does not comply with the material requirements of this Ordinance;

(e) has repeatedly drawn up supervision plans that do not comply with the requirements of this Ordinance;

(f) has certified minor works commenced under the simplified requirements that have been carried out in contravention of this Ordinance;

(g) has supervised minor works commenced under the simplified requirements that have been carried out in such a manner that they have caused injury to a person (whether or not while under such supervision);

(h) has carried out minor works commenced under the simplified requirements in such a manner that they have caused injury to a person;

(i) has carried out building works (other than minor works) under the simplified requirements as if it were minor works commenced under the simplified requirements;

(j) has certified building works (other than minor works) as if it were minor works commenced under the simplified requirements; or

(k) has failed to discharge the duties, or abide by the requirements, imposed on a qualified person, registered general building contractor or registered minor works contractor under this Ordinance in respect of a prescribed inspection or prescribed repair.

(3) The Building Authority may, in bringing to the notice of a disciplinary board a conviction, negligence or misconduct of a registered contractor that is a body corporate or is operating as a partnership, refer the names of the directors, officers, any person appointed to act for the body corporate for the purposes of this Ordinance and its partners to the disciplinary board for its consideration and action.

(4) Where, after due inquiry, the disciplinary board is satisfied that the registered contractor or the director or officer or the person appointed by the registered contractor to act on his behalf for the purposes of this Ordinance has been convicted as described in subsection (2)(a) or done an act described in subsection (2)(b), (c), (d), (e), (f), (g), (h), (i) or (j) or failed to discharge the duties or abide by the requirements mentioned in subsection (2)(k), the disciplinary board may –

(a) order that the name of the registered contractor or the name of the director, officer or person be removed from the relevant register, either permanently or for such period as the disciplinary board thinks fit;

(b) order that the registered contractor or the director, officer or person be fined –

(i) in the case of building works (other than minor works), a sum not exceeding $250,000; or

(ii) in the case of a prescribed inspection in respect of a window in a building or minor works, a sum not exceeding $150,000;

(c) order that the registered contractor or the director, officer or person be reprimanded;

(d) in the case of a registered contractor who is a registered general building contractor or a registered specialist contractor, order that he be prohibited from certifying or carrying out any minor works commenced under the simplified requirements, either permanently or for such period as the disciplinary board thinks fit; or

(e) in the case of a registered contractor who is a registered general building contractor or registered minor works contractor, order that the contractor be prohibited from certifying any prescribed inspection, or certifying or supervising any prescribed repair, in respect of a window in a building, either permanently or for any period that the disciplinary board thinks fit.

(4A) Where the disciplinary board makes an order under subsection (4), it shall order that its findings and order be published in the Gazette.

(5) In making an order in respect of a director, officer or other person appointed by a registered contractor to act on its behalf for the purposes of this Ordinance, the board may remove the director, officer or other person from any other company with respect to which he is registered under this Ordinance.

(6) A disciplinary board may make an order as it thinks fit for the payment of the costs of the inquiry or for the payment of the costs of the Building Authority or of the contractor, director, officer or other person about whom the inquiry is held.

(6A) The amount referred to in subsection (4)(b) and any costs of inquiry ordered to be paid under subsection (6) are recoverable as a debt due to the Government.

(7) A registered general building contractor, registered specialist contractor, registered minor works contractor, director, officer or other person aggrieved by an order made in respect of him under this section may appeal to a judge of the Court of First Instance.

(8) On an appeal the judge may confirm, reverse or vary the order of the disciplinary board.

(9) The practice for the appeal is subject to any rules of court made under the High Court Ordinance (Cap. 4).

(10) [Repealed]

37.  It can be noted here that section 13(7) provides for the possibility of an appeal by the respondent to a judge of the Court of First Instance.

38.  Section 11 of the BO materially provides for the appointment of the disciplinary board in respect of proceedings against a RGBC as follows:

11. Appointment and powers of disciplinary board

(1) The Secretary may from time to time, appoint a disciplinary board.

(2) Every board appointed to hear and determine any proceedings against a registered general building contractor shall consist of –

(a) 3 persons who are members of the Registered Contractors’ Disciplinary Board Panel appointed under section 11A;

(b) 4 persons who are members of the Authorized Persons’, Registered Structural Engineers’ and Registered Geotechnical Engineers’ Disciplinary Board Panel appointed under section 5A of whom –

(i) 1 shall be a person referred to in section 5A(2)(a);

(ii) 1 shall be a person referred to in section 5A(2)(b);

(iii) 1 shall be a person referred to in section 5A(2)(c); and

(iv) 1 shall be a person referred to in section 5A(2)(d);

(c) 1 person selected from among the persons nominated in accordance with subsection (4A).

(d) [Repealed]

…

(3A) The chairman of a disciplinary board shall appoint a legal adviser to assist in the conduct of the hearing of the disciplinary proceedings and to advise the disciplinary board on points of law that arise during the hearing. The disciplinary board may confer with the legal adviser after the conclusion of the hearing and before it hands down its decision but only after giving the person who is the subject of the hearing and his legal representative, if any, the right to be present while the legal adviser gives advice to the disciplinary board and the right to comment on the matters raised by the legal adviser to the disciplinary board.

(3B) A registered general building contractor, a registered specialist contractor or a registered minor works contractor, against whom disciplinary proceedings are taken, is entitled to be represented by a legal practitioner at disciplinary proceedings.

(4) The chairman of a disciplinary board appointed under subsection (1) shall be elected from the members of the board by its members.

(4A) For the purpose of subsections (2)(c), (3)(c) and (3AA)(c), the Building Authority is to invite such bodies as the Building Authority may think fit to nominate persons for the Secretary to consider for appointment to the disciplinary board.

(5) For the purposes of any inquiry under section 13, a disciplinary board appointed under this section shall have all such powers as are vested in the Court of First Instance in relation to –

(a) enforcing the attendance of witnesses and examining them upon oath or otherwise;

(b) compelling the production of documents;

(c) ordering the inspection of premises; and

(d) entering upon and viewing premises.

(6) The members of any disciplinary board appointed under this section, other than persons who are in full-time employment in any office of emolument under the Government, shall be remunerated at such rate as the Chief Executive may determine from time to time or in any particular case.

E.  General Notes on Disciplinary Procedure

39.  There are no statutory rules or guidance in respect of the conduct of the Disciplinary Proceedings. These are instead more generally guided by the ‘General Notes on Disciplinary Procedure’ (“General Notes”), which can be found in Appendix A of the Building Department’s Legal Services Section (“LSS”) Manual No. 4.2. This is not available to the general public.

40.  The respondent to proceedings before the Board may be an authorised person, a registered structural engineer, a registered geotechnical engineer, or a registered inspector under section 7 of the BO or a registered general building contractor, a registered specialist contractor or a registered minor works contractor and/or an authorised signatory under section 13 of the BO (as appropriate to the case).

41.  The General Notes are set out in sections headed ‘A. Preliminaries’, ‘B. Building Authority’s Case’, ‘C. Respondent’s Case’, and ‘D. Decision’. Each aspect is dealt with in that order in numbered paragraphs.

42.  Under Note 10 in the ‘Preliminary’ section, the respondent in the disciplinary hearings may object to the charge on a point of law. If he objects, any party may be heard in reply, to which the respondent is permitted to answer. If the objection is upheld by the Board, the charge is considered only subject to the objection.

43.  Part B of the General Notes specifically provides for the Building Authority’s Case, and Note 11 specifically identifies that counsel for BA presents the case, adduces the evidence and closes the case. In Part C of the General Notes, there is provision for a ‘half-time’ submission, which the Board might uphold and thereby find the respondent not guilty. If that submission is rejected, the Chairman will call upon the respondent to state his case. The respondent then adduces evidence in support of his case, with witnesses subject to cross-examination and re-examination as for the complainant’s witnesses. When the respondent has closed his case, the counsel for BA may address the Board. Then the respondent or his counsel may address the Board in reply.

44.  It is not specifically stated who “counsel for the BA” might be, such as whether it should be the DOJ acting for and on behalf of the BA, or whether the BA can engage independent counsel for the proceedings. But it can be noted that the General Notes specifically envisage that the prosecuting party is the BA, whoever acts as its counsel.

F.  Reviewability

45.  Ordinarily, the Court will not entertain an application for judicial review of a decision that is intermediate or procedural in nature, nor gives rise to any substantive consequence, nor is a decision of a decisive nature. The Court’s judicial review jurisdiction is of a supervisory nature, and is not meant for the purpose of micro-managing the activities of subordinate tribunals or administrative decision-makers: see, for example, Benver Company Limited v Appeal Tribunal (Buildings Ordinance) [2023] 2 HKLRD 1201.

46.  However, I am satisfied that these decisions, although intermediate in nature, give rise to consequences that will affect the substantive hearing of the disciplinary proceedings. I agree with Mr Ng that the Decision confirming the BA as the prosecutor in the disciplinary proceedings is not a decision which can be remedied at the end of the hearing, and raises potential issues of procedural fairness/unfairness that should be dealt with before the substantive hearing.

47.  I recognise there is some merit in Ms Lam’s submission that the Applicant can make further submissions at the substantive hearing on the formulation of the charge. Indeed, as already indicated, under Note 10 of the General Notes, the Applicant may object to the charge on a point of law. But I nevertheless find force in Mr Ng’s argument that the Decision and Further Decision might go “to the heart” of the fairness of the proceedings.

48.  I think it is just and appropriate for the Court to consider this matter at this time, before the disciplinary proceedings have re-commenced. I can, therefore, now turn to the individual grounds of review.

G.  Ground 1: Fair Hearing Ground

49.  The starting point is that, under section 13(1) of the BO, the BA may bring to the notice of the Board any matters set out in section 13(2) in relation to a RGBC if the conduct may fulfil any conditions set out in section 13(1)(a)-(i) – which provisions I have set out above.

50.  It may seem obvious that the way to do that is for the BA to formulate the reasons why it is said that certain matters – for example specified misconduct in building works – may render the contractor unfit to be on the register or lead to some other relevant conclusion open to the Board. It may also seem obvious that the way to do that is for the particulars of the complaint to be formulated by the BA as complainant, by way of a charge or charges with particulars.

51.  However, the Applicant argues that by (1) allowing the BA to participate in the Disciplinary Proceedings as the prosecutor and (2) having failed to afford the Applicant reasonable opportunity to answer the case against it, the Board has failed to ensure that the Disciplinary Proceedings were fair.

52.  The first assertion is that the BA is apparently biased, because of its conflict of interest.

G.1  Apparent Bias

53.  Bias is the lack of impartiality in the reasoning process. A decision is unlawful on the ground of bias where there is a relevant danger of bias (apparent bias).

54.  The Court of Final Appeal in Deacons v White and Case Limited Liability Partnership & Ors [2003] 6 HKCFAR 322 clarified the shift away from the traditional Gough test in Hong Kong towards the “reasonable apprehension of bias” test:

20…The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.

24. In the Medicaments case, the proper approach, applying the reasonable apprehension of bias test to such contested questions of fact, especially questions relating to the state of the judge’s knowledge, was explained as follows (at para 86):

“The material circumstances will include any explanation given by the judge under review as to his knowledge or appreciation of those circumstances. Where that explanation is accepted by the applicant for review it can be treated as accurate. Where it is not accepted, it becomes one further matter to be considered from the viewpoint of the fair-minded observer. The court does not have to rule whether the explanation should be accepted or rejected. Rather it has to decide whether or not the fair-minded observer would consider that there was a real danger of bias notwithstanding the explanation advanced.”

55.  In gist, the Applicant alleges that there is apparent bias because the BA, as both the authority approving the Approved Plans in the first place and as the prosecuting body in proceedings for the Applicant’s material deviations from said Approved Plans, is in an “embarrassing position of conflict of interest”. Mr Ng referred to the Carltona principle, whereby a decision made on behalf of a minister (or in this case a director of a government department) by one of his officials is constitutionally the decision of the minister himself: see Carltona Ltd v Comrs of Works [1943] 2 All ER 560.

56.  Ms Lam argued the Applicant only alleges apparent bias against the BA, not the Board, and as such this is an allegation of third party apparent bias. Ms Lam submitted that the Applicant, in order to succeed in its challenge, must at least establish a close link between the alleged third party apparent bias and the Decisions and particularise the “process of transmission of contagion”.

57.  In R (Compton) v Wiltshire Primary Care Trust [2009] EWHC 1824 (Admin), Cranston J held (at §91):

91. In my view the principle is clear: the bias of advisers is capable of vitiating a decision when there is a real possibility that it has adversely infected the views of the decision-maker. That seems to me to turn on at least three considerations. First, there is the nature of the advice itself. Advice to my mind falls along a spectrum from the provision of information, which may or may not have a bearing on the ultimate decision, to a strong recommendation that a particular course be taken. Secondly, there is the matter to which the advice pertains. That may be tangential to the decision to be taken, or it may be an essential component without which no decision is possible. Thirdly, there is the relationship between the adviser and the decision-maker and whether it is so close that there is a real possibility that the bias of one will infect the other.

58.  Cranston J also held at §96 that the doctrine of apparent bias could not apply to the circumstances of the case because from the perspective of a “fair minded and informed observer” the report did not contain recommendations as to the decision to be taken, but was more in the character of information for use in the decision process. It was “a tool which facilitated the taking of the decision, providing information for use in the decision-making, rather than being a clear pointer in the direction of what decision ought to be taken”. Ultimately, there was no apparent bias inflecting the decision-making process.

59.  Before returning to this point, I can address other aspects of the argument advanced by the parties.

60.  Both parties to the present proceedings referred extensively to Otis Elevator Company (HK) Limited v Director of Electrical and Mechanical Services [1995] HKCA 531, which dealt with a similar provision in the now-repealed Lifts and Escalators (Safety) Ordinance Cap 327. Litton VP held at §27 that “bringing the matter to the notice of the board” is not necessarily the same thing as formulating charges and prosecuting them before the board. Insofar as the Director’s role was concerned in the disciplinary proceedings, the Director only appoints the disciplinary board and asks the Attorney-General to draw up charges and, if there are charges, to prosecute them before the board. The conduct of the prosecution is left entirely to the Attorney-General who is not required to seek instructions of any kind from the Director. Therefore, the words “the Director may bring the matter to the notice of a disciplinary board” in the statute “do not necessarily cast the Director in the role of prosecutor or complainant at the hearing”. But, Litton VP also recognised that, in the absence of submissions by the parties, the disciplinary procedure “might well have been operated in this way”: see §§36-37.

61.  Mr Ng submitted that the design of section 13 of the BO mandates that the BA drop out of the picture and requires the DOJ to be interposed as an independent prosecutor. He said the BA’s statutory role is over once the matter is referred to the Board, and the BA has no statutory duty to prosecute any disciplinary matters under section 13. In his written submissions, Mr Ng suggested what was important is what is prescribed by the legislature, and invited me to place no weight on the General Notes.

62.  With respect, I disagree. Section 13 merely provides that the BA may “bring to the notice of a disciplinary board” the matters set out in section 13(2). How it does so, and what happens next is not set out in the statute.

63.  But, whilst the BO does not explicitly deal with the matter of who acts as prosecutor in the disciplinary proceedings, the General Notes are of some assistance. All references to the BA’s legal representatives are stated as “counsel for BA”. As noted above, it is not specified as to whether this refers to the DOJ acting for and on behalf of the BA, or independent counsel engaged by the BA. But, in the absence of any specific reference to the DOJ, I am inclined to think the BA is entitled to engage its own counsel in disciplinary proceedings.

64.  Ms Lam suggested that the legislature did not interfere with, or seek to cure “any perception of unfairness” arising out of the BA’s participation in the disciplinary proceedings subsequent to its initiation in its amendments following Otis. The Hansard for the Buildings (Amendment) Bill 1997 provides as follows:

Notwithstanding the Court of Appeal judgment, we propose to introduce the Bill to remove any perception of unfairness and to promote further the principle of self-regulation. (DEMS is preparing amendments to the Lifts and Escalators (Safety) Ordinance to achieve the same effect.) The opportunity is also taken to modernize and improve the administration of the disciplinary boards under the Buildings Ordinance.

65.  Notably, the amendments extended mainly to the appointment and composition of the disciplinary board. There were no suggested provisions dealing with the prosecuting body in disciplinary proceedings. Therefore, insofar as fairness is concerned, the inference could be drawn that the procedure of the BA acting as the prosecuting authority was not thought to be “unfair”. In any case, I find Ms Lam’s argument convincing, in that it is not uncommon for the same professional regulator both to investigate and to prosecute the case against a respondent in the context of other disciplinary and enforcement proceedings.

66.  It is a relatively well settled principle that there is no actual or apparent bias if there is clear segregation of responsibilities and personnel in the complaint decision-making process.

67.  In Leung Hon Wai v Director of Environmental Protection (unreported, HCAL 49/2012, 26 July 2013), the applicant’s argument that there was a risk of bias arising from the fact that the department heads are the Director’s subordinates was also struck down (at §§186-187):

186. Mr Pun finally argues that, even with and notwithstanding the factual segregation of powers and responsibilities, the fact is the "heads" of the segregated departments are the Director’s subordinates. There is thus at least an apprehension of risk that the segregated decision maker may be influenced by a sense loyalty to the Director. As such, the risk of bias is there.

187. The argument in my view is also misplaced. As said above, the Director in the process only acts nominally. She has no actual or active involvement in either of the segregated processes or decisions. There is also nothing to suggest that she somehow has a personal interest in favour of either of the processes or its outcome. She is thus entirely neutral to the process. In the premises, the question of risk of apparent bias arising from the Director’s influence or the division head’s loyalty to her is purely theoretical and simply does not arise.

68.  With those principles in mind, I turn to the facts of this case. Ms Lam submitted that the distinct functions of approving plans and prosecuting disciplinary proceedings were respectively performed by different individuals within separate units of the BD. The plan approval process is handled by the New Buildings Division (“NBD”) teams 1 and 2 (“NBD1” and “NBD2”), whereas disciplinary and criminal proceedings are handled by the Prosecution Units of the LSS under the Corporate Services Division (“CSD”). In summary, the material differences between the material functions and processes of the NBD and Prosecution Units/CSD are as follows:

(1)  The NBD is responsible for processing building and other related plans, amendments and consent applications.

(2)  The Prosecution Units deal with all prosecution actions arising from offences under the BO, including collation of evidence, calling for witnesses and giving instructions to counsel. The Prosecution Units of LSS seek advice from the DOJ on the criminal and disciplinary charges to be laid, amongst other things. The Prosecution Units also instigate disciplinary proceedings against authorized persons, registered structural engineers, registered geotechnical engineers, registered inspectors, registered general building contractors, registered specialist contractors or registered minor works contractors under sections 7 and 13 of the BO respectively.

(3)  There is generally no communication between the LSS under CSD and the NBD on the decision-making process by the LSS under CSD. The functions of the two divisions are segregated.

(4)  There is a structural segregation between the NBD and the LSS under CSD, which are headed by different persons.

(5)  The NBD and the LSS under CSD are physically segregated, with the two divisions being located in different offices.

69.  Moreover, as is stated in the BA’s evidence, none of the officers handling the Disciplinary Proceedings have or had responsibilities relating to or concerning the plan approval process, and there is “no overlap in personnel or reporting line in respect of matters which fall within the responsibilities of the NBD and the Prosecution Units of LSS under CSD respectively”, which further extends to communications between the involved officers in the respective departments.

70.  Where there is an apparent segregation of functions, duties and personnel within the relevant divisions of the BA, it is difficult to hold there is any material conflict of interest or apparent bias on the part of the BA. Further, I do not find Mr Ng’s argument that persons employed by the BA are “rotated amongst themselves” carries any weight on this ground.

71.  I further note the involvement of the DOJ in the disciplinary process. On 24 September 2021, the Applicant notified the Board of their intention to make representations to the Secretary for Justice (“SJ”) in respect of some fundamental issues on “whether there is a breach of natural justice in BD’s role in instituting the present disciplinary proceedings”. The Applicant subsequently issued three letters to the SJ on 18 November 2021, 14 December 2021 and 24 January 2022 respectively. By letter dated 13 April 2022, the DOJ responded that “the Civil Division of this Department is advising and acting for BD in these proceedings”, and “as these proceedings are underway and this Department is acting for BD, it is inappropriate for SJ or this Department to make any comment on the issues arising from these proceedings at this stage.”. This was acknowledged by the Applicant in a letter dated 9 June 2022. The decision to instigate the Disciplinary Proceedings against the Applicant was also made by the Prosecution Units of LSS “with advice from the [DOJ]”. At the disciplinary hearing, the BA were represented by individual Counsel. On that basis, it seems to me that the involvement of DOJ and external counsel further mitigates any apprehension of bias.

72.  As importantly, I agree with Ms Lam that the Applicant has not really begun to identify the process of transmission of contagion from the BA to the Board. There is simply no real relationship between the BA and the Board, and it is not even suggested that the Board was not itself independent or impartial. Further, the BA does not take any part in the decision-making process. What the BA has done is simply to provide its responses to the Applicant’s submissions by way of its own submissions.

73.  Therefore, I do not accept there is any basis for suggesting that the BA has tainted the decisions of the Board, or would do so in future.

74.  The allegation of apparent bias is not reasonably arguable with any realistic prospect of success.

G.2  Reasonable Opportunity to Answer Case

75.  Secondly, the Applicant submits that the Board has failed to afford a reasonable opportunity to the Applicant to answer the BA’s case by (1) failing to ensure proper particulars were given for the Charge on whether the alleged material deviation caused the collapse of the Link Bridge, and (2) failing to make full disclosure of the Full Design Calculations.

76.  It is a fundamental principle of fairness that a person must be informed of the charges made against him, so that he may know what he is charged with and have an opportunity of attempting to meet it: see, for example, R v Baldwin [1964] AC 40 at p121. Equally, professional persons subject to disciplinary proceedings are entitled to fair notice, not only of the specific rules or standards said to have been breached, but with sufficient particularity of what it is that is said to have been done or omitted which constituted an infringement of the applicable rules or standards: see The Registrar of the Hong Kong Institute of Certified Public Accountants v X [2017] 5 HKLRD 568 at §24.

77.  There must also be adequate disclosure of materials to enable the affected person to make “meaningful and focused representations” to the adverse materials: see Asia Television Ltd v Communications Authority (Successor of the Broadcasting Authority) [2013] 3 HKLRD 618 at §61. There should be a reasonable opportunity for a person to know about and respond to adverse materials received by and relied on by the decision-maker. However, the extent of what fairness demands is dependent on the context of each case, and the scope of disclosure to the affected person of any adverse evidence and materials received by the decision-maker required by the law to meet the minimum procedural fairness would depend on, amongst other things:

(1)  the statute that creates the discretion;

(2)  the prima facie relevance, credibility and significance of the evidence or materials vis-à-vis the decision which is to be made;

(3)  the nature of the relevant decision and its objective significance to the affected person. The more serious the significance and nature of the decision, the higher the standard or extent of procedural fairness for disclosure is generally required; and

(4)  Whether there are any countervailing factors against disclosure, such as: confidentiality for the protection of the witness from genuine fear of, say reprisal or harm, or national security. If there are such factors, the decision-maker would have to make a balancing exercise (in the circumstances of each case, including the nature and seriousness of the decision to be made) to see whether (a) notwithstanding the factors, disclosure is still needed to be made to ensure fairness, (b) he would no longer rely on this material and continue the investigation or hearing without it, or (c) he would abandon the hearing or investigation entirely.

78.  It would be convenient to start with the Applicant’s complaint that the BA has failed to state its case clearly, i.e. whether any material deviations from the Approved Plans caused the collapse of the Link Bridge.

79.  Mr Ng submitted that, by (1) the slipping in of Mr Ho’s report together with (2) the refusal to confirm the BA’s own case and (3) the vague suggestion in the Summary of Facts that the collapse involved the Link Bridge, the Applicant is wholly left in the dark as to what case it has to meet and thus is severely prejudiced.

80.  As already set out above, the Particulars of Allegations as against the Contractor (i.e. the Applicant) state it instigated, sanctioned, acquiesced in the failure to carry out, or failed to ensure that there was due performance of, the construction of the corbels supporting the Link Bridge at the Site in accordance with the approved plans, i.e. deviated in a material way from the works shown in the plans approved by the BA.

81.  Similarly, the Particulars of Allegations against the Applicant in the Notice to the Registered Contractors’ Disciplinary Board dated 6 July 2022 state:

Particulars of Allegations as against the Contractor

[The Applicant], being the registered general building contractor appointed in respect of the residential development at the Site in about October 2012 to June 2014, misconducted itself in building works, in that:

it instigated, sanctioned, acquiesced in the failure to carry out, or failed to ensure that there was due performance of, the construction of the corbel(s) supporting Link Bridge No. 3 (“the Bridge”) at the Site in accordance with the approved plans, i.e. the said construction deviated in a material way from the works as shown in the plans approved by the Building Authority.

82.  It is perhaps not entirely clear from the Particulars of Allegations alone whether an element of causation is alleged against the Applicant, i.e. whether the deviations caused the failure of the Link Bridge.

83.  But, more information can be found in the correspondence between the Applicant and the BD (some of which I traversed in the ‘Background’ section above – to which reference can also be made).

84.  When that correspondence is read in sequence and holistically, it seems clear that the BD was informing that its case against the Applicant is that it carried out building works, in material deviation from the approved plans, and a material consequence of that deviation was the collapse of the Link Bridge.

85.  As noted above, by 14 May 2021, the Applicant stated that – with the particulars provided in the BD’s letters – it understood the BD’s basis of the misconduct charges is that the construction of the concrete corbels was a material deviation which resulted in the subsequent failure of the corbels. Similarly, in the letter dated 15 July 2021, the Applicant stated its deduction – from the information provided so far – was that the BD is alleging that both Respondents had caused the failure of the corbels and hence caused the collapse of the footbridge.

86.  Further, by letter dated 2 August 2021, the BD provided to the Applicant a copy of the expert report prepared by Mr C S Ho (dated 19 May 2015). Mr Ho’s findings included that (1) the Applicant was aware of the change in corbels’ size and was aware of the absence of corresponding structural amendment plans and consent, but still carried out the works which deviated from the plans approved on 15 October 2012, and (2) the Applicant, in the course of steel reinforcement fixing, should have been aware of the 70mm reduced overlapping zone between the corbel and the edge beam was unable to fix the steel reinforcing bars in accordance with details in plans approved, decided to place the top steel reinforcing bars (4T25) of the corbel below the bottom steel reinforcing bars (6T40) of the edge beam, without informing the RSE. Moreover, Mr Ho’s finding was that this deviation finally caused the collapse of the Link Bridge.

87.  Therefore, there is force in Ms Lam’s submission that the Applicant recognised the charge against it to be that its deviation from the Approved Plans caused the collapse of the Link Bridge, and it would lie ill to raise a complaint now, having instructed its defence experts to address this issue.

88.  I acknowledge that later, in a letter dated 31 August 2023, the Applicant expressed its concern that the Summary of Facts enclosed in the Bundle contained no allegation that “the Applicant’s misconducts caused the failure of the corbels, or the collapse of the Link Bridge No.3, or anything to that effect”. But against the history overall, I do not think this furthers the Applicant’s case on this matter. It is, as Ms Lam suggests, a ‘red herring’.

89.  The Applicant also alleged that the unfairness is exacerbated by the BA’s inability to disclose the Full Design Calculations.

90.  In this regard, the Practice Note for Authorized Persons, Registered Structural Engineers and Registered Geotechnical Engineers (“PNAP”) ADM-8 (revised July 2016) issued by the Buildings Department provided as follows:

Structural Calculations

8. Structural calculations should be grouped into two parts, each to be properly indexed. The first part should contain essential information on the structural design of the building as given in paragraph 9 below, and is to be retained in the Buildings Department (BD) for record. The second part should contain relevant details of analysis and design calculations of the structural elements as outlined in paragraphs 10 to 12 below.

10. The second part of the structural calculations (namely Part II structural calculations) usually involves presentation of detailed analysis and design of individual structural elements computed by BD’s pre-accepted programs in bulk volume of computer printout. Part II structural calculations will be returned to the authorized person (AP) / registered structural engineer (“RSE”) after processing of the structural proposal. This would inevitably involve a large amount of resources in the preparation and handling of the calculations.

91.  The Full Design Calculations collectively refer to the full set of design calculations submitted by the RSE to the BA to support (1) plan D2069A in respect of the Corbels that was approved on 15 October 2012 (“Corbel Design Calculations”) and (2) plan D4259A in respect of the Edge Beams that was approved on 17 June 2013 (“Edge Beam Design Calculations”), which form part of the Part II structural calculations in PNAP ADM-8.

92.  Of particular note is the fact that Part II structural calculations, i.e. the Full Design Calculations, are returned to the RSE after processing of the structural proposal. Therefore, under PNAP ADM-8, the BD does not retain the Full Design Calculations.

93.  But, I also note the previous practice of the BD as stated by the evidence. PNAP ADM-8 appears to deviate from PNAP 121, which provides that Part II calculations should be returned after the issue of occupation permits. The new practice is allegedly so to keep future physical files to a minimum in the new BD office.

94.  Mr Ng argued the Applicant had no choice but to instruct experts to ascertain the cause of the collapse of the Link Bridge without the use of the Full Design Calculations, during which they had difficulty forming a view as to what mistakes the RSE made, if any, which resulted in the absence of vertical steel reinforcement bars between the corbels and the edge beams. Mr Ng submitted that the BA has purportedly relied upon some design calculations, but it is unknown if these are the Full Design Calculations. It is also unclear whether Mr Ho had access to the Full Design Calculations.

95.  But, I agree with Ms Lam that it seems the BD does not retain, and was not in possession, power or custody of the Full Design Calculations, because they were returned to the RSE on 15 October 2012. On this point alone, it would be objectively impossible for the BD to provide such information to the Applicant.

96.  I note that all three of the experts appointed by the Applicant to render expert opinions on the cause of the collapse of the Link Bridge said they would only be able properly to evaluate and ascertain the RSE’s mistakes and misassumptions in the original RSE design (if any) with the Full Design Calculations. However, they also stated they had ascertained the true cause of collapse of the Bridge despite not being provided with the Full Design Calculations. Hence, it appears the Applicant is already in a position to make meaningful representations to address the case against it, even in the absence of the Full Design Calculations.

97.  Therefore, I find there is no procedural unfairness arising from the absence of disclosure of the Full Design Calculations.

G.3  Conclusion on Ground 1

98.  Before I conclude, I can also quickly deal with the point of curative effect raised by Ms Lam.

99.  Section 13(7) of the BO provides for an appeal process against the Board’s decision, whereby a party to the disciplinary proceedings “aggrieved by an order made in respect of him” may appeal to a judge of the Court of First Instance. Section 13(8) provides that the judge may confirm, reverse or vary the order of the disciplinary board. Section 13(9) provides that the practice for the appeal is subject to any rules of court made under the High Court Ordinance.

100.  Order 55 of the Rules of the High Court (“RHC”) deals with appeals to the High Court from other courts and/or tribunals. Order 55 rule 3(1) provides that an appeal shall be “by way of rehearing”. Under Order 55 rule 7(2), the Court shall have power to receive further evidence on questions of fact.

101.  In Otis, it was suggested that Order 55 and section 11I of the repealed Lifts and Escalators (Safety) Ordinance (Cap 327) (which is equivalent to sections 13(7), (8) and (9) of the BO) essentially provide “an unrestricted right to a complete rehearing on appeal”: see §53.

102.  I accept that a rehearing is not conducted in complete disregard of the proceedings before the relevant tribunal or its decision. A rehearing is not the same as a retrial, in that the court dealing with the appeal will neither hear the evidence once again nor allow the appellant to cross examine the witnesses again. The role of the court is to look at the original decision to see if there are mistakes such that it should intervene. Though proper weight will be given to the earlier decision, an appellant is always able to point out where it is said the tribunal erred on a point of law, departed from applicable principle, misapprehended the facts, or took into account irrelevant matters or exercised the discretion without any reasonable basis.

103.  Therefore, it seems to me that, as to Mr Ng’s submission that the alleged procedural unfairness cannot be remedied at a later point, the provision of an appeal process before the Court could cure that kind of alleged unfairness. The procedure as a whole satisfies the requirements of fairness.

104.  In any event, I find that Ground 1 is not reasonably arguable with any realistic prospect of success. Alternatively, even if there is a proper basis for the grant of leave, I would refuse Ground 1 on substantive review.

H.  Ground 2: Adequate Reasons Ground

105.  The Decision was expressed as follows:

Lastly, in relation to the allegation of conflict of interest of BA in the present proceedings, the Board is satisfied with the BA’s submissions in their letter dated 2 March 2023 that it is the duty of BA to initiate disciplinary proceedings under section 13 of the BO. And the Board agree that there is no substance in the Respondents’ challenge.

106.  The Further Decision was expressed as follows:

The Board noted that the Building Authority (BA) has provided their response to your letter dated 31 August 2023 in their letter dated 7 September 2023, which was also received by the Board on 11 September 2023. The BA replied that they have responded in their letters dated 10 May 2021, 24 May 2021 and 2 August 2021 and they have nothing further to add. The Board is of the view that you can prepare your case based on the submissions already filed by the BA and the Board cannot see the justification on making any further direction at this moment.

107.  In gist, the Applicant alleges that the matters set out in the Decision and the Further Decision cannot be sustained as adequate on the basis that the Board adopted the position of the BA, and there was no analysis as to the law and facts related thereto, nor had the Board engaged any further assistance from the parties on this important issue. Mr Ng submitted that serious doubts are raised over the decision-making process, particularly that the Board had never properly considered the matter and the proper thought process had never been gone through.

108.  On the other hand, Ms Lam submitted that the Applicant had identified no prejudice arising from the alleged lack of reasons, nor was there any real prejudice arising from the manner in which the Board articulated the Decision and the Further Decision. Ms Lam argued that, viewed in context of the Disciplinary Proceedings which involved non-legal professional members sitting on the Board, the lack of detailed reasons in giving the Decisions should not be faulted.

109.  The relevant principles in relation to the giving of reasons for decisions are well known and have been considered by me in previous cases. I will endeavor to summarise them again below:

(1)  There is no general duty to give reasons for administrative decisions, but the nature or circumstances of an adjudication might indicate a necessity for giving reasons.

(2)  If and when a duty to give reasons arises, what is regarded as adequate depends on the particular facts of each case.

(3)  The Court should consider a reasons challenge with practical reality in order to prevent an application for judicial review from being turned into a merits review, and to avoid treating day-to-day administrative decision-making processes as if they were judgment-writing.

(4)  The reasons given should show that the decision-maker has addressed the substantial issues and show why the decision-maker has come to its decision.

(5)  The reasons should show that the issues that arise for serious consideration have been considered.

(6)  But the reasons in any given case may not require great elaboration, and they may be brief.

(7)  Sufficient reasons may be required so as to enable the affected individual to exercise effectively any right to appeal or review.

(8)  The giving of reasons in any individual case must be viewed in the context of that case.

(9)  Hence, it may be that the Court can have regard to the prior interaction or exchange between the parties to determine whether the reasons given are sufficient to meet the requirements of the principles.

(10)  Where the decision-maker purports to have given reasons, the reasons should be subject to the same level of scrutiny as if there was an express duty to give reasons.

(11)  A reasons challenge will only succeed if the party aggrieved can satisfy the Court that he has genuinely been substantially prejudiced by the failure of the decision-maker to provide an adequately reasoned decision.

110.  The BA’s letter dated 2 March 2023 dealt with the Applicant’s queries on the BA’s role as prosecutor in the disciplinary proceedings. I have also already canvassed the correspondence in which the basis of the BD’’s case was articulated.

111.  It seems to me that letters were quite clear as to the BA’s position. Hence, the Board’s adoption of that position would suffice as clear and adequate reasons which addressed the substantial issues. Although it is brief, I do not think the reasoning is lacking. The Board simply fully agreed with the BA’s reasoning, to which it made reference. That would have been perfectly comprehensible.

112.  I also agree with Ms Lam that the Applicant has failed to identify any prejudice arising from the alleged lack of reasons. I note the Applicant was nevertheless able to prepare its case for the disciplinary proceedings in quite some detail. In any event, the Decisions of the BA cannot be said to be prejudicial to the Applicant simply because the Applicant disagrees with them.

113.  Ground 2 is not reasonably arguable with any realistic prospect of success. Alternatively, even if there is a proper basis for the grant of leave, I would refuse Ground 2 on substantive review.

I.  Ground 3: Unreasonableness Ground

114.  It is trite that a decision is Wednesbury unreasonable or irrational in circumstances where the decision is such that no reasonable authority could ever have come to it. It is also trite that establishing irrationality is a high hurdle for a judicial review applicant to overcome.

115.  The Applicant submits that the two Decisions are irrational for the following reasons:

(1)  The Decision has wholly ignored the statutory design of section 13 of the BO. The Board has, without reasoning and without any discernible basis, and without considering holding any oral hearing for this issue, confirmed the BA’s role as the prosecutor, whereas it should have at least, in light of the unique factual situation of this case, stopped the BA from further pursuing its role as a prosecutor and interposed the DOJ as an independent prosecutor.

(2)  The Decision has wholly failed to appreciate the prejudice suffered by the Applicant by the lack of particulars and disclosure of relevant documents and, without reasoning and without any discernible bias, compelled the Applicant to proceed to the hearing.

116.  This is essentially a ‘repackaging’ of Ground 1 and Ground 2 under the guise of irrationality, and the Applicant specifically seeks to rely on the facts and arguments pleaded in respect of those grounds to challenge the decisions on the basis of Wednesbury unreasonableness. I do not think this Ground adds anything to the other two Grounds, which I have found to lack merit.

117.  As such, I find Ground 3 also has no merit, and I reject the Applicant’s challenge of irrationality as being not reasonably arguable with any realistic prospect of success. Alternatively, even if there is a proper basis for the grant of leave, I would refuse Ground 3 on substantive review.

J.  Conclusion

118.  The Applicant’s judicial review application is dismissed.

119.  As to costs, it seems to me that the costs should follow the event. Hence, the Applicant shall pay the costs of the BA, to be taxed if not agreed. In the circumstances of the representation, it seems to me that the taxation should be on the basis of a certificate for two Counsel. But I shall make that costs order nisi in the first instance, to become absolute after 14 days if neither party makes an application for variation. Any variation application will be dealt with on paper.