WELCON ENGINEERING CO LTD v. DIRECTOR OF FIRE SERVICES

HCAL 109/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 109 OF 2008

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J U D G M E N T

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1.  The applicant, a limited company, was a fire service installation contractor in classes 1 and 2 pursuant to the provisions in the Fire Service (Installation Contractors) Regulations (Cap 95A).  Its registration was solely by virtue of the qualifications of one of its employees, a Mr Wong Tik-lun (TL Wong).  TL Wong, however, left the applicant’s employment in 2005.

2.  In contravention of regulation 7(1) of the Regulations, the applicant did not, within 14 days from the termination of TL Wong’s employment, notify the Director in writing of the termination of employment.  That contravention, prima facie, amounted to a criminal offence: regulation 13.

3.  Furthermore, as there was no immediate replacement of TL Wong by a suitably qualified person (ie a person holding qualifications specified in regulation 4(2) and (3)) and therefore regulation 7(2) did not apply, the registration of the applicant as a registered contractor in classes 1 and 2 was liable to be removed from the register by the Director of Fire Services pursuant to regulation 8(b).

4.  The only reason why its name was not so removed was that the applicant wrongfully failed to notify the Director of the termination of TL Wong’s employment.

5.  The matter eventually came to light when the applicant made an application by letter dated 27 September 2007 to the Director for the replacement of TL Wong with a Mr Wong Sing-leong (SL Wong), whom the applicant started to employ on 1 September 2007.

6.  The application was made under regulation 3(1) of the Regulations.  A form 1 was filled in and supporting evidence required by the Regulations was supplied to the Director in support of the application.

7.  On 15 July 2008, SL Wong accepted the Director’s invitation for an interview.  By letter dated 17 July 2008, the Director informed the applicant that its application for replacing TL Wong with SL Wong as the employee holding the requisite qualifications had been rejected on the ground that SL Wong had not been able to satisfy the Director during the interview that he was capable of giving to the applicant sufficient assistance to enable it to discharge its responsibilities as a registered contractor.

8.  The letter further noted that the applicant had failed to notify the Director of the departure of TL Wong, and since there was no replacement of TL Wong, the applicant’s name was removed from the register by virtue of regulation 8(b).

9.  The Director, however, observed that the applicant could consider making an application for re-registration (by making a regulation 3 application) pursuant to regulation 8A.

10.  Dissatisfied with the Director’s decision, the applicant through solicitors asked the Director to reconsider the decision, arguing, in particular, that the Director had no power to call for an interview of SL Wong, because no interview was required for a class 1 or class 2 registration application, as opposed to a class 3 application.

11.  By letter dated 10 September 2008, the Director informed the applicant’s solicitors that he maintained his previous decision.  The Director took the view that he had the power under section 40(1) of the Interpretation and General Clauses Ordinance (Cap 1) to call for the interview, for the purposes of ascertaining SL Wong’s employment status and his capability to take up the job.

12.  The letter said that the Director had carefully considered all the documents and information provided by the applicant and SL Wong but was not satisfied that SL Wong was employed by the applicant on a full time basis.

13.  Regulation 6 provides that any person aggrieved by a relevant determination or decision of the Director under regulation 3(4) may appeal by way of petition to the Chief Executive who may confirm, vary or reverse the determination or decision.  It also provides that the decision of the Chief Executive on the appeal shall be final.

14.  Instead of taking out an appeal against the Director’s refusal of its application, the applicant has chosen to apply for leave to launch judicial review proceedings to challenge the Director’s decision.

15.  Generally speaking, judicial review is a remedy of last resort.  When there is an alternative remedy available, normally the aggrieved person is expected to take advantage of that remedy, instead of resorting to a  judicial review application.

16.  In order to get round this difficulty, the applicant asserts that the Director’s decision under challenge is not a decision or determination made under regulation 3(4) of the Regulations.

17.  I do not agree.  If it is not a determination or decision made under regulation 3(4), I do not know under what regulation the decision or determination under challenge has been made.

18.  The relevant application was made by means of a form 1, the prescribed form for making an application under regulation 3(1).  No doubt, both the applicant and the Director perceived the relevant application as an application made under that regulation.  The determination or decision of the Director was, on that footing, quite plainly made under regulation 3(4).  Therefore the appeal procedure applies.

19.  Furthermore, insofar as the application for replacement may be understood as an application for re-registration made pursuant to regulation 8, regulation 3 still applies to such an application for re-registration and the Director’s determination or decision is still made under regulation 3(4).

20.  The applicant then says that its intended challenge is based on questions of law, which are singularly suitable for determination by the court, rather than the Chief Executive.  It argues that the existence of an alternative remedy is not an absolute bar to judicial review but is only one of the factors to be taken into account.

21.  I am prepared to assume, for the purposes of disposing of this application for leave, that judicial review is open to the applicant in the present circumstances and to proceed to examine whether the questions of law put forward by the applicant are reasonably arguable on the entire evidence presented before the Court: Po Fun Chan v Winnie Cheung [2008] 1 HKLRD 319.

22.  The first question of law put forward by the applicant, in the order set out in the form 86A, is that the Director had no power to hold an interview with SL Wong.  It was an ultra vires act.  The answers obtained by the Director from the interview were irrelevant matters, which the Director ought not to have taken into account.

23.  The applicant argues that unlike a class 3 registration application, the Regulations do not provide for the conducting of an interview.

24.  I reject the argument.

25.  The Director is plainly right in his reliance on section 40(1) of the Interpretation and General Clauses Ordinance to justify the interview.  The section provides that where any ordinance confers upon any person power to do or enforce the doing of any act or thing, all such powers shall be deemed to be also conferred as are reasonably necessary to enable the person to do or enforce the doing of the act or thing.  Since the applicant’s application for registration was based solely on the qualifications of its employee, SL Wong, the employment status of SL Wong with the applicant and his capability to take up the job were of great importance to the Director.  This is clearly borne out by the provisions in regulation 3(3) (whether the employee is at the same time employed by another registered contractor) and 3(5) (whether the employee is capable of giving to the applicant sufficient assistance to enable him to discharge his duties as a registered contractor where he is also employed at the same time by another registered contractor).  And the statutory form 1 clearly requires an applicant to state whether the employee in question is employed full time or part time by the applicant/employer.

26.  On the materials before me, the interview was had precisely for that purpose.  And partly because of the information obtained in the interview, the Director was not satisfied that SL Wong was capable of giving to the applicant sufficient assistance to enable it to discharge its duties as a registered contractor.  Specifically, the Director was not satisfied that SL Wong was in full time employment with the applicant.

27.  I do not accept the argument that the context of the Regulations prevents the application of section 40(1) in the present case.

28.  In particular, the fact that in a class 3 registration application, an interview is mandatory (regulation 3(4)(c)) does not, whether as a matter of logic or as a matter of common sense, preclude the Director from conducting an interview with the applicant or the employee in question under a class 1/class 2 application if and when he finds it reasonably necessary to do so in order to “determine if the applicant is fit to be registered as a fire service installation contractor in the class or classes specified in the application” (regulation 3(4)).  A mandatory interview in one situation does not preclude a discretionary and voluntary interview in another situation.

29.  The next question of law put forward by the applicant is that the Director has misdirected himself in law in believing that he has to be satisfied that SL Wong has to be employed by the applicant on a full time basis.

30.  In my view, this is a misreading of the letters from the Director, which must be read in context and with a certain latitude in how the Director should choose to express himself.  The last thing the Court should do is to scrutinise the Director’s reasons with the analytical vigour employed on statutory or trust instruments.  And it must be remembered that brevity is an administrative virtue.  Woolf, Jowell & Le Sueur, de Smith’s Judicial Review (6^th ed) paras 7-104 to 7-105.

31.    True it is that the Director said in his letter dated 10 September 2008 that he was not satisfied that SL Wong was employed by the applicant on a full time basis.  But the letter also said that the interview held was for the purposes of ascertaining SL Wong’s employment status and his capability to take up the job.  More importantly, the letter must also be read in conjunction with the earlier letter by the Director dated 17 July 2008 where he said that he was not satisfied by SL Wong in the interview that he was capable of giving to the applicant sufficient assistance to enable the applicant to discharge its duties as a registered contractor and thus the refusal of the application.  The latter letter of 10 September 2008 maintained that position.

32.  I accept that the Regulations do not say that unless the person in question is employed on a full time basis with the applicant, the application must be rejected.  But that was never the Director’s reason.  His reason, if the correspondence is read fairly and as a whole, was that he was not satisfied that SL Wong was capable of giving to the applicant sufficient assistance to enable him to discharge his duties as a registered contractor.  Indeed under the Regulations, the person in question need not even be an employee (whether full time or part time); he could be a director or partner.  There is nothing reasonably arguable to suggest that the Director has made such a basic mistake in relation to the application under consideration.

33.  Whether the fact that the employee in question does not work full time for the applicant renders the employee incapable of giving to the applicant sufficient assistance to enable him to discharge his duties as a registered contractor must depend on the facts, particularly on how much time and attention he can provide to the applicant as its employee.

34.  It is also true that regulation 3(3) and (5) only refer to the situation where the employee in question is also employed by another registered contractor at the same time, when dealing with whether he is capable of giving to the applicant sufficient assistance to enable him to discharge his duties as a registered contractor.  Yet it is plain that what is important is whether the employee is so capable of giving the requisite assistance.  The fact that he is employed at the same time by another registered contractor is just one possible reason for his incapability.  It all depends on the facts.  If the employee also works as an independent contractor for others (without being an employee of anyone else), like what the applicant says SL Wong’s position is, it could still so affect his capability to render sufficient assistance to the applicant in question as to render the applicant unable to discharge his duties as a registered contractor.  It is for the Director to be satisfied with the employee’s capability to render the sufficient assistance required.

35.  I disagree that the Director has misdirected himself on the point in question.

36.  Then it is argued that the Director was wrong in law to conclude that SL Wong was not in full time employment with the applicant.  I do not find any question of law here.  Whether SL Wong was in full time employment with the applicant is a question of fact, on which the Director has made a determination.  There simply are no materials placed before the Court to convert that determination of fact into a question of law in the Edwards v Bairstow sense ([1956] AC 14).

37.  Moreover, bearing in mind, as already described, that there is an appeal procedure provided in regulation 6, the present contention can hardly justify the grant of leave to launch judicial review proceedings.

38.  The applicant contends that the Director was wrong to deregister it for failing to notify the Director of the departure of TL Wong, or has confused the question of deregistration with the application for registration based on SL Wong’s qualifications.  I see no merit in this contention whatsoever.  The Director very sensibly looked at the substance of the matter first, without being bogged down by the question of deregistration by reason of the applicant’s failure to find an “immediate” replacement for TL Wong following his departure.  After he came to the conclusion that the applicant could not be registered on the basis of SL Wong’s qualifications, he, very naturally and correctly, in my view, turned to the deregistration provisions in regulation 8(b) and decided to deregister the applicant from the register.  Very appropriately and fairly he reminded the applicant of its right to make an application for re-registration pursuant to regulation 8A.

39.  The applicant’s argument is therefore rejected.

40.  Paragraphs 51 to 53 of the form 86A contend that the Director has failed to take into account all relevant considerations, has taken into account irrelevant considerations and his decision was Wednesbury unreasonable.  The matters relied on have all been covered in the above discussion, and I will not repeat myself.

41.  The application is dismissed with no order to costs.