Background
Following a link bridge collapse at a residential development project in Kowloon, the Building Authority (“BA”) initiated disciplinary proceedings against the main contractor before the Registered Contractors’ Disciplinary Board. The contractor sought judicial review of two intermediate decisions of the Board: one confirming the BA’s role as prosecutor, and another declining to direct further clarification of the charges.
Apparent Bias: Dual Regulatory Role and Test for Third-Party Apparent Bias
Section 13 of the Buildings Ordinance (“BO”) empowers the BA to bring matters to the notice of the Board but is silent on the identity of the prosecutor in disciplinary proceedings. The Applicant contended that the BA, having both approved the structural plans in question and initiated and prosecuted the disciplinary proceedings for alleged deviations from those same plans, was in a position of conflict giving rise to apparent bias.
The Court rejected this, applying the “reasonable apprehension of bias” test. Coleman J reaffirmed two important principles. First, no apparent bias arises where there is genuine structural and functional segregation within the regulatory authority; here, plan approval and disciplinary prosecution were handled by entirely separate divisions with no overlap in personnel, communications or reporting lines. Second, following R (Compton) v Wiltshire Primary Care Trust, an allegation of third-party apparent bias requires identification of a “process of transmission of contagion” to the actual decision-maker.
The Applicant failed to discharge this burden: there was no suggestion the Board itself was partial, and the BA played no part in the Board’s decision-making. The involvement of the Department of Justice and independent counsel reinforced this conclusion.
The Court also considered the legislative history following Otis Elevator Company (HK) Ltd v Director of Electrical and Mechanical Services, in which the Court of Appeal had examined the analogous prosecutorial framework under the repealed Lifts and Escalators (Safety) Ordinance, and drew the inference from subsequent amendments to the BO (which addressed board composition but left the prosecutorial framework untouched) that the BA’s participation as prosecutor was not regarded as institutionally unfair.
Procedural Fairness and Adequacy of Reasons
The Court reaffirmed that the content of procedural fairness is context-dependent. On the question of particulars, Coleman J held that disciplinary charges must be assessed holistically and in light of the full pre-hearing correspondence rather than the formal charge document in isolation. Where a party’s own contemporaneous correspondence demonstrates a clear understanding of the case to be met, it might not credibly assert a subsequent want of particulars.
On reasons, the Court reaffirmed that a reasons challenge will only succeed where the applicant demonstrates genuine substantial prejudice. A decision-maker’s express adoption of a clearly reasoned position advanced by a party, particularly in the context of a non-legally-qualified tribunal, can constitute adequate reasoning.
The Court further held that the existence of a statutory appeal by way of rehearing to the Court of First Instance under section 13(7)-(9) of the BO is relevant to the overall fairness of the procedure. Any residual procedural unfairness at the disciplinary stage could be addressed on appeal, and the procedure viewed as a whole satisfied the requirements of fairness.
Takeaway
The judgment is a useful authority on the interplay between apparent bias, prosecutorial dual roles and procedural fairness in the context of statutory disciplinary regimes. It confirms that internal segregation of functions within a regulatory authority can answer an apparent bias challenge, and that the “transmission of contagion” requirement sets a meaningful threshold for third-party bias claims. The holistic approach to assessing particulars and the bounds of disclosure obligations are also of general application.
Ms Catrina Lam SC and Mr Charlie Liu, instructed by the Department of Justice, for the Building Authority.
Read the judgment here: https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=180853&currpage=T
