Re A Wall Signboard Attached At 3/F-10/F, China Travel (Cargo) Logistics Centre, No.1 Cheong Tung Road, Hung Hom, Kowloon Location 2: External Wall Facing Hung Hom Station

DCMP 545/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 545 OF 2017

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REASONS FOR DECISION

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INTRODUCTION

1.At the end of the hearing, I granted the priority demolition order (“PDO”) sought by the Building Authority (“BA”) but I refused to award costs of this application to the BA.  I also declined to make an order concerning the demolition costs.  I now give my reasons.

The PDO

2.On 17 February 2017, the BA applied to this court (“the PDO application”) for a PDO in respect of the premises known as “a wall signboard attached to the external wall at 3/F to 10/F facing Hung Hom Station, China Travel (Cargo) Logistics Centre, No.1 Cheong Tung Road, Hung Hom, Kowloon” (“the Signboard”).  The application was made pursuant to s 24B of the Buildings Ordinance (“BO”).  On 21 February 2017, the BA filed 2 affirmations in support of the application.

3.Apart from posting the notice of the PDO application (“the Notice”) upon a conspicuous part of China Travel (Cargo) Logistics Centre (“the Building”), the BA has also sent the Notice to the following persons, who in the BA’s view, are persons affected by the PDO application:-

(a)  The owner of the Building (“the Owner”);

(b)  Yamatoo Japan Limited (“YJ”);

(c)  China Travel Cultural Media Hong Kong Limited (“CTCM”); and

(d)  Real Media International Company Limited (“RM”).

4.Having considered the evidence filed by the BA, I am satisfied that the requirements concerning notice of the PDO application in s 24B(2), (3) and (4) have been complied with.  I am also satisfied that the BA has proved the existence of the circumstances as set out in s 24B(1)(a) and (b), ie “the building or building works constitute an imminent danger to life or property” and “the building has been erected or the building works have been or are being carried out with a view to sale, letting or other disposal.”

5.According to the evidence produced by the BA:-

(a)  The Signboard is an unauthorized structure and there is no evidence proving its safety.  The projection of the maintenance walkways from the external wall has exceeded the standard and is excessive.  Further, the Signboard is projected over a construction site and the failure of the structural frames could bring catastrophic consequences to the public safety.

(b)  CTCM in the capacity of the sole operator of the Owner authorized RM as the sole advertising agent to merchant and to operate the Signboard.

6.As to why the BA is of the view that YJ is a person affected by the PDO application, the evidence on this point is unclear.  However, this does not affect the PDO application in any way.

7.On 22 February 2017, the BA has instructed the Department of Justice (“DoJ”) to represent them in these proceedings.  On 23 February 2017, the DoJ filed a notice to act in these proceedings

8.On 24 February 2017, a Mr Li Lyu (李旅) filed an application to this court pursuant to s 24B(7) of the BO (“the 24B(7) Notice”) to apply to be heard in the hearing of the PDO application.  This is the only 24B(7) Notice filed in these proceedings.  Mr Li did not specify his capacity in the 24B(7) Notice.  Mr Li also did not file any affidavit or affirmation in response to the PDO application made by the BA.

9.During the hearing, Mr Li said he was the General Manager of CTCM and he was authorized by CTCM to attend the hearing.  Mr Li undertook to this court that he would provide an authorization letter signed and sealed by a director of CTCM to this court after the hearing.  The said authorization letter was provided to the court in the afternoon on 28 February 2017.

10.Mr Li made an oral representation in the hearing, in which he mentioned 3 points:-

(a)  The Signboard was erected at a time before 2010, and the safety of the same has been checked and approved by a qualified person.

(b)  CTCM only took the operation right of the Signboard from the Owner in the last year and has just signed a contract with a new customer.  In the last 3 months, there was no enforcement action by the BA.  It would not be fair to CTCM if the BA chose to take enforcement action now.

(c)  If the Signboard ought to be demolished, Mr Li hope that more time could be given to CTCM.

11.Mr Brain Leu for the BA pointed out that Mr Li might not be able to represent CTCM in these proceedings, for the requirements in the Rules of the District Court (“RDC”) Order 5A rule 2 had not been complied with.  I agree.  While CTCM might intend to have Mr Li to represent them in these proceedings, CTCM might only do so by following the requirements laid down in RDC Order 5A rule 2.  One of these requirements is that a corporation may only carry on proceedings in this court by a solicitor or by one of its directors.  Obviously, Mr Li is not a solicitor.  He is also not a director of CTCM.  Accordingly, CTCM would not be able to carry on these proceedings by Mr Li.

12.That being the case, strictly speaking, it would not be necessary for me to consider the representation made by Mr Li.  The 24B(7) Notice filed by Mr Li cannot be regarded as a notice filed by CTCM.  Further, the representation made by Mr Li cannot be regarded as CTCM’s representation.

13.Even if I treat Mr Li’s representation as CTCM’s representation, I would still grant the PDO application.

(a)  There is no evidence produced by Mr Li showing that the Signboard is safe.

(b)  In Mr Li’s representation, in fact he has admitted the Signboard has been erected with a view to letting.  That is exactly within s 24B(1)(b) of the BO.

(c)  The BA has a duty to enforce the law and CTCM has a duty to abide by the law.  I do not see any unfairness in granting the PDO application made by the BA.

(d)  Since the Signboard constitutes an imminent danger to life or property, there is no reason to wait.

14.Having considered all these, I granted the PDO application.

Costs of this application

15.Mr Leu asked for costs.  He submitted if Mr Li did not put in the 24B(7) Notice, the BA would have no need to instruct the DoJ and an officer of the BA would attend this hearing.  Hence, CTCM should bear the costs of this hearing. Mr Leu drew my attention to Building Authority v Good Fortress Limited (DCMP 3411/2016, 17 January 2017), in which the court ordered that costs of the application for a PDO be paid by the interested party (the owner of a signboard targeted by the application) to the BA.

16.I refused to award costs to the BA.

17.The first reason is simply because, as a result of the non-compliance with RDC Order 5A rule 2, CTCM in fact has no participation in this PDO application.

18.The second reason is, it is factually incorrect to say that DoJ was instructed as a result of the 24B(7) Notice.  As set out above, the BA has already instructed DoJ before Mr Li filing the 24B(7) Notice.  Even without the 24B(7) Notice, costs of instructing DoJ have already been incurred.  This is the first and the only hearing of the PDO application.  The oral representation made by Mr Li in the hearing is a very brief representation and no affidavit or affirmation has ever been filed by Mr Li.  In these circumstances, I do not think it would be appropriate to award costs to the BA.

19.In the Good Fortress case, the first hearing is a call-over hearing, in which the court gave some directions to the parties and adjourned the matter to another date for arguments with 3 hours reserved.  The second hearing is the substantive hearing.  Both parties have filed affidavit evidence and the court has spent considerable time in hearing submissions made by the parties.  At the end, the court made the PDO requested by the BA. Understandably, in these circumstances, the interested party has to pay costs to the BA.  Obviously, the Good Fortress case is very different from the present case.

Demolition Costs

20.Mr Leu invited me to make an order concerning the demolition costs.  He drew my attention to s 24B(18) of the BO, which provides:-

“The Building Authority may recover from the owner of the building or building works, or the person who authorizes the erection of the building or the carrying out of the building works, the cost of any works that the Building Authority carries out, or causes to be carried out, under this section.”

21.I declined to make an order concerning the demolition costs.  In the Notice, there is no warning that the BA would make an application for the demolition costs pursuant to s 24B(18) of the BO in this hearing.  All the persons who are considered by the BA as persons affected by the PDO application have not attended this hearing.  In my judgment, it would not be proper to make an order concerning the demolition costs in this hearing.  However, this does not preclude the BA to take any step under s 24B(18) of the BO or under any other law to recover the demolition costs from anyone at a later time.

22.Lastly, I thank Mr Leu for the assistance given to this court.

Mr Brian Leu of Department of Justice, for the applicant.