The plaintiff in Rich Engineering Ltd v Fire Service Installation Contractors Disciplinary Board [2024] HKCFI 648 appealed against the decision of the Fire Service Installation Contractors Disciplinary Board removing it from the Register of Fire Service Installation Contractors for a period of nine months.

The Fire Services Department inspected the fire service installation (FSI) works carried out by the plaintiff (REL) for its customers at a building in Wanchai and one in Sheung Wan. By letters dated 7 October and 17 November 2020, the Director of Fire Services summoned REL to attend an inquiry hearing to be held on 1 December 2020 to hear cases on twelve separate incidents. Statements of grounds of each of the cases were attached to the Director’s letter dated 17 November 2020.

The Board found all statements of grounds in the cases proven, including that of issuing false/misleading certificates and furnishing misleading information to the instructor regarding the progress of the installation.

REL put forward 19 grounds of appeal in respect of ten of the twelve cases including breach of natural justice, failure to give reasons and insufficient preparation time.

The Honourable Madam Justice Au-Yeung noted that under Regulation 10(1) of the Fire Service (Installation Contracts) Regulations (Cap. 95A), the Director may refer a matter to the Board “if a registered contractor has been convicted of an offence or has been guilty of improper conduct or negligence, in the installation, maintenance, repair or inspection of any FSI” that would render them unfit to be on the Register, or making their continued inclusion in the Register prejudicial to the due administration of the Fire Services Ordinance (Cap. 95). Regulation 12(1) provides that a registered contractor who is aggrieved by an order made by the Board under Regulation 10(2) may appeal to the Court of First Instance which may confirm, reverse or vary the order of the disciplinary board.

The court is not bound to allow the appeal “on the ground merely of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court substantial wrong or miscarriage has been thereby occasioned”.¹ Au-Yeung J said that even if there had been procedural irregularity on the part of the tribunal, it did not follow that the court had to remit the case to the tribunal for a re-trial. This would depend on whether there was substantial miscarriage of justice.

The court rejected many of the claimed irregularities cited including the “contravention of mandatory statutory procedure” ground and a complaint that by chairing the inquiry hearing, the Director was “in effect acting as a judge in his own cause over the allegations made by his own departmental staff”. Au-Yeung J said that event if there were defects in the composition of the Board, they would have been cured by the appeal mechanism set out in Regulation 12.

The court rejected the claim that the plaintiff was deprived of the opportunity to express any opinion at the hearing and also that the Board erred in law in compelling the plaintiff’s witness to answer incriminating questions. The court said “it is well established that a witness is presumed to know the law”.

The court did agree with the plaintiff however on its complaint that the Board had failed to give reasons as to what conduct was improper and what was judged to be negligent in several of the cases considered. The court also found that the one week given to REL to consider all the documents was insufficient “especially since the charges were disciplinary in nature and might affect the reputation and livelihood of REL”. In so doing, Au-Yeung J found “that there was a substantial wrong or miscarriage of justice which warrants intervention by the Court”. The court ordered that the conviction in three of the ten cases under appeal should be set aside and those cases remitted for re-trial before a differently constituted Board.

The court also found that the Board had failed to give any reasons for sentence and directed that the Board should be ordered to give reasons in those cases in which the conviction stood.

Au-Yeung J said that costs had been increased “by the wide ranging but not all useful grounds of appeal”. Costs were awarded to REL, with the exception of costs in respect of an unsuccessful attempt to join the Director to the proceedings. The court ordered the Board to bear 90 per cent of REL’s costs amounting to HK$180,000.

Takeaway

The decision highlights the avenues open to a contractor when having to deal with a situation they may perceive as unfair or not properly founded in the facts and that may affect their professional standing or reputation. The court is ready to step in when the legal test is met that it appears there has been a “substantial miscarriage of justice”.

Whilst many of the plaintiff’s grounds of appeal were not successful, the fact that they did succeed on two of the key grounds in three of the cases was enough to have the three cases considered afresh by a differently constituted Board.

Authored by Nigel Sharman

References

1 Order 55 rule 7(7), Rules of the High Court