Re Po Wing (International) Construction Ltd.

HCMP 6667/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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JUDGMENT

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The Motions

1. There are 2 Motions before me. The first Motion in HCMP 6667/2001 is brought by Mr. Chow Yan Wei ["Mr. Chow"]. The second Motion in HCMP 6668/2001 is brought by Po Wing (International) Construction Limited ["Po Wing"]. The 2 Motions raise substantially the same issues. Both Mr. Chow and Po Wing seek to challenge the recommendation made by the Contractors Registration Committee ["CRC"] at the conclusion of Mr. Chow's interview with that Committee on 20th November, 2001.

Background

2. Mr. Chow is a Chartered Professional Engineer. In March and April, 2000, Mr. Chow was interviewed by CRC in connection with the applications by Wing Key Construction Co., Ltd. ["Wing Key"] to be placed in the general building contractors' register and in the specialist contractors' register for demolition, foundation and site formation works. Those applications were successful. Wing Key was placed on the 4 registers and Mr. Chow was accepted by the Building Authority to act as the authorized signatory or appointed person and as technical director of Wing Key.

3. By application dated 11th August, 2001, Po Wing applied to be placed on the specialist contractors' register in the foundation works category. Mr. Chow was put forward as the technical director of Po Wing in respect of this application.

4. By letter dated 19th October, 2001, the Buildings Department notified Mr. Chow of his scheduled interview with the CRC on 20th November, 2001. Mr. Chow attention was drawn to section 8 of the "Practice Note for Registered Contractors - 38" ["the PNRC"]. That section of the PNRC provides that :

"The purpose of the interview is to ascertain whether the appointed person(s) possesses the necessary basic knowledge and experience required for carrying out his designated function, and that he has the competence to apply such knowledge in executing building works. The principal knowledge on which the Committee is likely to require the appointed person(s) to demonstrate his ability to apply is :

(1) The statutory role, functions and duties of a registered general building contractor or specialist contractor as the case may be in relation to the role and responsibilities of the Building Authority in respect of private building developments in Hong Kong.

(2) The objectives of the Buildings Ordinance and Regulations and the mechanism of control in respect of the execution of building construction works.

(3) A general awareness of local conditions which must be sufficient to enable him to practice in Hong Kong efficiently and effectively without having to make frequent enquiries on matters of common local knowledge.

(4) A working knowledge and principles of the relevant parts of Buildings Ordinance and Regulations, relevant codes of practice...

(5) The fundamental requirements of procedures that a registered contractor must follow in order to meet local statutory requirements.

(6) adequate technical knowledge and practical experience in building construction to enable him to discharge his duties as a registered general building contractor or registered specialist contractor".

Mr. Chow was further told that "Interviews of technical directors or other officers will mainly cover technical and practical aspects. Please be prepared that the CRC may require you to discuss your performance records as declared, if any".

5. Mr. Chow had previous involvements with foundation works but the bulk of such involvements was prior to the enactment of the Buildings (Amendment) Ordinance on 19th January, 1995 which banned the use of hand-dug caissons. He had only 1 foundation works project between 1996 and 2001. That was for a period of 20 months between March 1996 to November, 1997 and the project was for the construction of caisson foundation works at a site in Robinson Road.

6. During the interview on 20th November, 2001, Mr. Chow was asked a series of questions. Those questions are set out in a list disclosed shortly before commencement of the hearing before me. According to that list, questions were put to Mr. Chow in relation to the main duties of the Registered Contractor; the objectives of the Buildings Ordinance; the procedures from appointment as contractor to completion of piling; the procedures prior to driving of H-piles and the manner for ascertaining the quality and strength of the H-piles. In my opinion these questions are general in nature. They relate to matters regularly encountered in the daily operations of a specialist contractor undertaking foundation works. According to an assessment form disclosed at the same time as the list of questions, CRC passed Mr. Chow in respect of his understanding of statutory role, function and duties; awareness of local conditions and common knowledge in the field and possession of technical knowledge and practical experience. His understanding of the objectives of the Building Ordinance & control mechanism; his knowledge of the Buildings Ordinance, regulations and codes and his knowledge of the procedures to meet local statutory requirements were regarded by CRC to be "marginal". CRC therefore decided to recommend to the Building Authority that the application be deferred for 3 months.

The grievances of Mr. Chow and Po Wing

7. Mr. Chow says that CRC acted contrary to the General Guidelines issued by the Buildings Department in relation to Contractors Registration ["the General Guidelines"]. Paragraph 1 of the General Guidelines points out that under section 8B(2) of the Buildings Ordinance, an applicant for registration for registration as a specialist contractor must satisfy the Building Authority ["BA"] on the ability of persons appointed by the applicant to act for the applicant for the purposes of the Buildings Ordinance. Such persons include authorized signatories ["AS"]; technical director ["TD"] and other officers ["OO"]. Paragraph 5 of the General Guidelines provides that "If the AS/TD/OO has been interviewed not more than 3 years before the date of the current application, BA may make reference to previous records without another interview with the candidates." Paragraph 7 of the General Guidelines further provides that :

"For new applications for registration, the current legislation requires the CRC to interview the applicants. Accordingly, even if the proposed AS/TD/OO has previously been accepted under the current system, he is required to attend an interview on behalf of the applicant. However, the interview with an AS/TD/OO who falls within the criteria as specified in paragraph 5 above will mainly focus on aspects other than the competence and ability of the candidate. The interview may cover aspects such as management structure of the applicant, its decision-making mechanism and ability of access to plant and resources and past performance records of the applicant or the key personnel".

8. In essence, Mr. Chow and Po Wing's case is that Mr. Chow had previously been interviewed in March, 2000 in connection with the applications of Wing Key. Wing Key's applications were approved and he was accepted as Wing Key's AS. He should therefore not be asked questions during the 20th November, 2001 interview in relation to his competence and ability. CRC erred in failing to observe paragraphs 5 and 7 of the General Guidelines.

Case of the CRC and the Building Authority

9. Mr. Yau Kwok Fai ["Mr. Yau"], Chairman of the CRC, informed this Court that he and his committee members considered the documents submitted by Mr. Chow and Po Wing prior to the interview on 20th November, 2001. They noticed that Mr. Chow had only one job reference during the past ten years in respect of foundation works. During the interview Mr. Chow confirmed that he had no foundation work experience with Wing Key since he became the AS of Wing Key in March 2000. "Because Mr. Chow had limited experience and in works now banned, the CRC had to conduct a full interview".

10. Mr. Chow was given the opportunity to cross examine Mr. Yau. Mr. Chow declined that opportunity. I have little doubt that he was motivated by costs constraints. Despite the absence of cross examination, I see no reason why the evidence of Mr. Yau should not be accepted. The belated discovery of the documents pertaining to the 20th November, 2001 interview is regrettable but provides no basis for doubting Mr. Yau's testimony.

My Decision

11. Mr. Chow and Po Wing's case is based on a distorted reading of the General Guidelines. Paragraph 9 of the General Guidelines makes it clear that

"Notwithstanding paragraphs 5 to 8 above, I must emphasize that whether an interview is required for a particular AS/TD/OO or not and the scope of any such interview are dependent on circumstances of each case and are solely at the discretion of the BA and/or CRC for the purpose of ensuring the required standard of the contractor".

12. A careful reading of the General Guidelines and the 19th October, 2001 letter referred to in paragraph 4 above should have indicated to Mr. Chow and Po Wing that CRC has a discretion in respect of the scope of an interview and whether to ask questions and what questions to ask. CRC is made up of 6 members experienced in matters concerning registration. They determined that Mr. Chow's answers were not satisfactory and that the application should be deferred. Given the nature of Mr. Chow's experience in foundation works and the total lack of involvement in any foundation project since March, 2000, it cannot be said that CRC acted capriciously or unreasonably as to warrant judicial intervention.

13. For these reasons, I refuse the reliefs craved for by Mr. Chow and Po Wing. I see no reason why costs should not follow the event however sympathetic I am to Mr. Chow's current financial position.