HKSAR v. Gemsland Hotels Ltd

HCMA 554/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 554 OF 2016

(ON APPEAL FROM ESS 2245 OF 2016)

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DECISION

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1.The appellant was found guilty after trial of the offence of “Failing to comply with an order of the Building Authority without reasonable excuse, contrary to s. 40(1BA) of the Buildings Ordinance, Cap 123 (“the Ordinance”).

2.The appellant appealed against its conviction.  I dismissed the appeal on 8 March 2017.  By a Notice of Motion dated 21 March 2017, the appellant applied for an order to certify that points of law of great and general importance are involved and ought to be submitted to the Court of Final Appeal for decision.

3.The subject matter in this case is a huge signboard (“the Signboard”) mounted to the external wall of a building.  The appellant is the owner of the Signboard. An order (“the Order”) for the demolition of the Signboard under s. 24 of the Ordinance was issued by the Building Authority (“the Authority”) on 19 June 2013.  The appellant lodged an appeal against the Order to the Appeal Tribunal on 4 July 2013.  That appeal was dismissed on 13 March 2015.  Thereafter, the Order was not complied with.  The appellant was therefore summonsed for the non‑compliance of the Order, and was found guilty after trial.

4.Both at the trial and the appeal proceedings, the appellant was not legally represented, and Mr Choy Bing Wing appeared as the company representative of the appellant.

5.Before the appeal hearing, the appellant applied to this court to fix the appeal to be heard by the full bench of the Court of Appeal.  I directed such application to be heard in the appeal hearing scheduled on 2 March 2017.  At the appeal hearing, Mr Choy left the courtroom soon after he arrived.  I refused the appellant’s application to refer the case to the Court of Appeal and proceeded to consider the merits of the appeal (see paragraph 30 to 35 of my judgment).

6.I subsequently dismissed the appeal.  Among the reasons given in paragraph 36 to 55 of my judgment, I agreed with the interpretation of the relevant statutory provisions of the Ordinance by Bokhary J in HKSAR v Joy Express Limited HCMA 5/2003.  At paragraph 13 of her judgment, her Ladyship held: 

“When deciding whether the attachment of something to a building constitutes building works, it is important to consider the nature and size of the thing attached, the way that it is attached, and the effect or potential effect to the building of having the thing attached to it. It is a question of fact and degree.”

7.The trial magistrate, having applied the test laid down in HCMA 5/2003, correctly concluded that the Signboard was an “addition” to the building, and therefore “building works” under the Ordinance. The  Authority hence had power to issue the Order under the Ordinance.  The appellant’s contention that the Authority had no jurisdiction to issue the Order therefore failed.

Grounds of Application

8.In the Notice of Motion, the appellant stated the points of law of great and general importance as follows: 

“(1) whether an appellate judge could turn blind (eye) to the clear fact of an administrative building order being void ab initio and a CFI judge had erred in a definition of law in this regard, and refused to refer the case to the Court of Appeal for correction of law, per the authority Boddington v British Transport Police…[1992] 2 AC 143…and per the judicial notice of the same admitted;

(2) whether a judge facing a complaint or accusation of being a crook could say nothing about the same and proceeded to deal with the case, ie could an unclear crook administer law; and

(3) whether a judge might continue to proceed the appeal for which the Appellant representative had no authority to attend except the CA hearing and not otherwise under the judicial system for the authority of such an appeal laid in (1) of invalid order.”

9.This morning, Mr Choy again represented the appellant in this hearing of the application for the certificate to the Court of Final Appeal.  Mr Choy handed up a letter dated 12 May 2017.  He then walked out of the courtroom, as he did before in the appeal hearing on 2 March 2017.  Indeed, Mr Choy has repeatedly demonstrated disrespect to the courts both at the magistracy and in this court.  Treating his departure as a waiver of his right to be present, I continued with the hearing in his absence.

Discussion

10.Coming back to the appellant’s Notice of Motion applying for an order to certify points of law of great and general importance, I have to say that it is not clear what precisely are the points of law raised by the appellant in the Notice of Motion.  It appears that leaving aside the personal attack towards this court, four points might have been raised:

(1) The order is void ab initio because the Building Authority had no authority to issue the order;

(2) Bokhary J erred in HCMA 5/2003 in the interpretation of the terms “building works” under the definition section of the Ordinance;

(3) I was wrong in refusing to refer the appeal to the Court of Appeal; and

(4) I had no jurisdiction to proceed with the hearing on 2 March 2017 because Mr Choy was only authorised to attend a hearing before the Court of Appeal. 

11.An additional point is probably raised in the letter dated 12 May 2017 handed up to court this morning.  In this letter, Mr Choy repeats his accusation that Mr Simon Kwong of the Department of Justice and I committed the crime of conspiracy to defraud the appellant.  Mr Choy asks that both Mr Kwong and I be replaced by other officers.

12.The first and second points were discussed in paragraph 41 to 50 of my judgment.  The points concern the interpretation of the terms “building works” and “addition to a building” of the Ordinance.  These terms consist of plain and simple words.  The interpretation of the Ordinance by Bokhary J cannot be wrong.  Given the size and condition of the Signboard, the magistrate’s finding that the Signboard constituted building works again cannot be faulted.  In my judgment, the contention that the Building Authority had no jurisdiction to issue the Order is not reasonably arguable and does not amount to any point of law of great and general importance fit for certification.  

13.The third point was discussed in paragraph 29 to 35 of my judgment.  It relates to the exercise of discretion by a judge of the Court of First Instance to refer a magistracy appeal to the Court of Appeal.  It does not raise any point of law.

14.The fourth point appears to suggest that I had no jurisdiction to proceed with the appeal hearing on 2 March because Mr Choy was only authorised to attend a hearing before the Court of Appeal, not before a judge of the Court of First Instance.  The hearing was said to be unlawful and the judgment of 8 March 2017 has no legal effect. 

15.I cannot agree.  In my judgment, the appellant was aware of the hearing of the appeal on 2 March this year.  Whether or not the appellant wanted to send a representative to attend the hearing or what authority it would give to its representative do not matter.  It would not affect this court’s jurisdiction to hear the appeal under the Magistrates Ordinance.  There is no point of law involved, and the argument has no chance of success at all.

16.The point raised in the letter dated 12 May 2017 is a groundless accusation against Mr Kwong and myself.  I refuse to have Mr Kwong replaced, nor would I recuse myself in these proceedings. 

The Result

17.The appellant’s application has no merit whatsoever.  I dismiss the application and refuse to order the certificate.  I also order the appellant to pay costs of this application to the respondent, to be taxed if not agreed.

Mr Simon Kwong, Senior Public Prosecutor (Ag) of the Department of Justice, for the respondent

The appellant appeared in person, engaging Mr Choy Bing Wing as its company representative