Administrative law — Appeals Tribunal of Hong Kong Federation of Insurers — Hong Kong Federation of Insurers Insurance Agents Registration Board — failure of administrative tribunal to seek proper proof of allegation that document was false in circumstances in which it was plainly indicated as required — failure to give adequate reasons — not inevitable even if likely that rehearing would produce same result — challenged decisions quashed and matter remitted for fresh consideration
X applied to the Hong Kong Federation of Insurers Insurance Agents Registration Board (the “Board”) for registration as an appointed insurance agent of AIA Co Ltd / AIA International Ltd. That application was successful and X was registered accordingly. Sometime later, two allegations (the “Two Allegations”) were levelled against X. One was that she had made an incorrect statement or declaration as to her academic qualifications when making the application. And the other was that the graduation certificate which she used when making the application was false. The Board made a decision (the “Substantive Decision”) finding the Two Allegations established. Then the Board made a decision (the “Sanction Decision”) that X should be deregistered as an insurance agent for a period of three years. X appealed to the Hong Kong Federation of Insurers Appeals Tribunal (the “Tribunal”) against the Sanction Decision. The Tribunal gave a decision (the “Appeal Decision”) dismissing her appeal. One day later, the Board made a decision (the “Implementation Decision”) deregistering X as an insurance agent for a period of three years. With leave granted on the papers, X applied to the High Court for judicial review of the Appeal Decision and the Implementation Decision. She did so on four grounds: (a) illegality and irrationality; (b) breach of a duty to investigate; (c) procedural unfairness in that there was no oral hearing before the Board or the Tribunal; and (d) failure to give adequate reasons.
Held, quashing the Substantive Decision, the Sanction Decision, the Appeal Decision and the Implementation Decision and remitting the Two Allegations to the Board for fresh consideration in accordance with the Court’s judgment, that:
1) Neither the Appeal Decision nor the Implementation Decision was illegal in the sense of absence of lawful power to make the relevant decisions. (See para. 26.)
2) The absence of an oral hearing before the Board did not give rise to any procedural unfairness since X did not ask for an oral hearing even though she had been informed that she could ask for one. (See para. 26.)
3) The Substantive Decision was rendered Wednesbury unreasonable by the Board’s failure to seek proper proof that the allegedly false graduation certificate was indeed false even though it was plainly indicated as required so in the circumstances. (See para. 27.)
4) While reasons given by an administrative tribunal for a decision did not have to be lengthy or comprehensive, they should at least demonstrate that the tribunal had properly grasped the issues before it and had dealt with them in a proper and intelligible manner. The Appeal Decision failed to deal with the grounds of appeal raised by X, the reasons given amounting to no more than that the appeal had no merit, that X had used a false academic qualification and that the graduation certificate was a false document. And the assertion by one of the members of the Tribunal that the issue raised by X in the appeal was not consistent with a letter of hers to the Board was problematic. It was clear that the reasons given by the Tribunal were inadequate so that the Appeal Decision, too, should be quashed for Wednesbury unreasonableness (The Queen v Director of Immigration and the Refugee Status Board, ex p Do Giau  1 HKLR 287, Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority (1997-98) 1 HKCFAR 279, Capital Rich Development Ltd v Town Planning Board  2 HKLRD 155, Ng Wing Hung v Commissioner of Registration (HCAL 125/2006,  HKEC 1209) applied). (See paras.
5) It followed from the conclusion that the Appeal Decision and the Implementation Decision could not stand that the Substantive Decision and the Sanction Decision could not stand either. (See para. 31.)
6) The remedy of judicial review was discretionary. So, a court might refuse to grant relief even where one or more of the grounds for judicial review were made out if it would be futile to grant relief. Granting relief would be futile where, for example, the proper relief would be to quash the original decision and remit the matter for fresh consideration, and it was clear that a rehearing would make no difference because the decision-maker would inevitably reach the same conclusion. But a court would not lightly conclude that the outcome would inevitably be the same, having regard to the requirement that the decision-maker at the rehearing should approach the matter with an open mind. In light of fresh evidence produced by both sides, it was not inevitable, even though likely, that the Board and the Tribunal would at a rehearing again conclude that the graduation certificate was not authentic. (See paras. 32–35.)
This was an application for judicial review of the decision of the Appeals Tribunal of the Hong Kong Federation of Insurers dismissing the applicant’s appeal against the decision of the Hong Kong Federation of Insurers Insurance Agents Registration Board that the applicant be deregistered as an insurance agent for three years; and the decision of the Board to implement its decision. The facts are set out in the judgment.
Editorial note: This judgment deals with: (a) an administrative tribunal’s duty to (i) seek proper proof in circumstances in which it is appropriate to do so and to (ii) give proper reasons; and (b) a court’s proper approach to a question of whether judicial review should be refused on the basis that a rehearing would inevitably yield the same result as the original hearing had.