Aggressive Construction Co Ltd v Director of Buildings & Anor

 [2026] HKCFI 337, the Building Authority (BA) refused to renew the Appellant’s registration as a general building contractor. The Appellant appealed to the Court of First Instance, contending that the BA had failed to give reasons for the refusal, in breach of s.8E of the Buildings Ordinance (BO).

In allowing the Appellant’s appeal and remitting the Appellant’s application to BA for reconsideration, Cheng J explained the ambit of BA’s statutory duty to give reasons and other public law duties:

(1) To comply with s.8E, BA needs to give reasons for refusing renewal, which must be in writing and given at the time of the notice of refusal.

(2) Reasons should show why (as opposed to state the conclusion that) the decision-maker has come to the decision.

(3) If the applicant shows BA erred in not giving reasons, he will have shown an error of law justifying the Court’s intervention. If BA argues that there should be no intervention because there were good reasons, it may adduce evidence to explain (but not to alter, contradict or reconstruct) the reasons.

(4) Where BA fails the statutory duty to give reasons, it is not a requisite element for relief for the applicant to show he was prejudiced. Quashing the unreasoned decision would be the usual remedy although the Court may refuse to grant relief if it would be futile to do so, for example because the decision-maker would inevitably make the same decision.

(5) In terms of the BA’s practice to adopt and apply policies to guide the exercise of discretion, that is permissible provided he does not allow the policy to fetter his discretion. Further, there is no absolute requirement that a policy must be published to be lawful. Specifically, the unpublished policy in this case (RC-5) was not inconsistent with BA’s other published policies. But failure to inform the Appellant of the exceptions to RC-5 was procedurally unfair as it deprived them of the chance to make representations.

, instructed by DLA Piper Hong Kong, acted for the Appellant.

, and Justin Lam, instructed by the Department of Justice, acted for the Respondents.

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High Court clarifies statutory duties to give reasons and other public law duties

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