Easy Appvertising (Hunter) Ltd v. Appeal Tribunal (Buildings)

HCAL 1099/2017

[2018] HKCFI 2331

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1099 OF 2017

________________________

________________________

Before:  Hon Chow J in Court

Date of Hearing:  11 October 2018

Date of Decision:  11 October 2018

Date of Judgment:  16 October 2018

____________________

J U D G M E N T

____________________

INTRODUCTION

1.This is an application for leave to apply for judicial review of the decision (“the Decision”) of the Appeal Tribunal (Buildings) (“the BAT”) dated 19 September 2017 dismissing the Applicant’s appeal against a building order (“the Order”) issued by the Building Authority (“the BA”) in respect of a signboard attached to the external wall on 3/F to 5/F of Percival House, 83 Percival Street, Hong Kong, facing Percival Street and Matheson Street (“the Signboard”).  At the conclusion of the hearing on 11 October 2018, at which the Applicant did not appear, I made an order dismissing the application with costs to the BA to be taxed if not agreed, with brief reasons to be given later, which I now do.

BASIC FACTS

2.The Applicant, a private company incorporated in Hong Kong on 3 July 2014, is the operator of a mobile shopping application called “Hunter App” which allows merchants to offer electronic discounts coupons to customers.

3.During an inspection carried out by staff of the Buildings Department (“the BD”) on 17 July 2015, it was found that the Signboard bore the main inscription of “Hunter”, and advertised the use of “Hunter App” to obtain coupons of a restaurant known as “East Ocean Restaurant” (“the Restaurant”).  The image of an artiste also appeared prominently on the Signboard.

4.In July 2015, staff of the BD also found the following information from carrying out internet searches:-

(1) In Hunter App’s website, it was stated that “We are Easy APPvertising (Hunter) Limited, a part of the Easy Group” which provided a “full range of mobile shopping experience … offering the best coupons from reputable merchants and brands”.  The website also advertised the use of the App to obtain coupons of the Restaurant, and contained the same image of the artiste as on the Signboard.

(2) The App’s Facebook page contained advertisements for the use of the App to obtain coupons of the Restaurant.

5.On or about 24 July 2015, the BA served a building order (ie, the Order) under Section 24(2)(c)(i) of the Buildings Ordinance, Cap 123 (“the Ordinance”) on the Applicant requiring it to demolish the Signboard (there being no dispute that it was unauthorised building works), and reinstate the affected parts of the building in accordance with the plans approved by the BA.

6.On 25 August 2015, the Applicant lodged a Notice of Appeal against the Order.  The preliminary hearing of the Applicant’s appeal before the BAT took place on 7 February 2017.  On 19 September 2017, the BAT handed down the Decision dismissing the Applicant’s appeal with costs to the BA.

7.On 18 December 2017, the Applicant made the present application for leave to apply for judicial review of the Decision. The application was supported by an affirmation of Hung Ka Hang Thomas, a director of the Applicant.  In the Form 86, two grounds of judicial review were raised, namely:-

(1) irrationality (mistake of fact); and

(2) procedural impropriety.

8.On 24 January 2018, the court directed an oral hearing of the application for leave to apply for judicial review, with liberty to the BA to file evidence and attend the hearing to resist the leave application.

9.The Applicant was originally represented by a firm of solicitors, KCL & Partners.  On 14 September 2018, upon KCL & Partners’ application, the court granted them leave to cease to act for the Applicant in these proceedings.

10.On 18 September 2018, the BA filed the affirmation of Cheng Yu Hon Daniel.

DISCUSSION

11.The oral hearing of the leave application took place on 11 October 2018.  As earlier mentioned, the Applicant did not appear at the hearing to move the application, while the BA was represented by Ms Tessa Chan, Government Counsel.

12.Where an applicant fails to appear at an oral hearing convened to consider the application for leave to apply for judicial review, the court has a discretion whether to hear the matter or dismiss the application without consideration of its merits.  Generally speaking, I consider that the court ought to decline to entertain the leave application, because even if leave to apply for judicial review is granted, no further step may be taken by the applicant, including issuing an originating summons as required by Order 53, rule 5(1) of the Rules of the High Court, fixing a date for the substantive hearing, and proceeding with the substantive hearing, while time and costs may be unnecessarily incurred by the respondent to file evidence in opposition to the application under Order 53, rule 6(4) of the Rules of the High Court.  In the meantime, the application is left hanging in the air, which would plainly be undesirable having regard to the nature of judicial review.  In this regard, it should be noted that the court would not normally grant leave to apply for judicial review unless it is satisfied that the grounds raised in the application (which may be illegality, irrationality or procedural unfairness) are reasonably arguable.  In many cases, it would be just as important to the decision-maker as it is to the applicant to have a proper determination of the substantive application because the same issues may be recurring regularly.

13.Further, if the complaints raised by the applicant are facts specific or are of interest to the applicant only, there would be little reason for the court to resolve those complaints where they are not being pursued by the applicant.  On the other hand, if the complaints raised by the applicant involve questions of law of public importance, it may not be appropriate for the court to determine such questions unless they are fully argued on both sides.

14.There may of course be exceptional circumstances where the court would consider it appropriate to proceed to determine the leave application on its merits notwithstanding the failure of the applicant to appear at the hearing to move the application.

15.In the present case, I do not consider there to be any exceptional circumstances to justify the court entertaining the leave application where the Applicant did not appear at the oral hearing to move the application.  On this ground alone, I would dismiss the application for leave to apply for judicial review.

16.For the sake of completeness, I should briefly consider the merits of the application.  As earlier mentioned, two grounds of judicial review have been raised in the Form 86.

17.The first ground of judicial review is irrationality - mistake of fact.  The Applicant’s complaint is that the BAT wrongly found that the Signboard was erected for the Applicant, whereas it was in fact erected for the Restaurant.  The Applicant further says that the supporting frames of the Signboard had already been in existence prior to its incorporation, and the Applicant may not be entitled to remove the Signboard as required by the Order.  However, as pointed out by the BAT in paragraphs 25 and 26 of the Decision, other than bare assertions, the Applicant did not produce any evidence to show that the Signboard and/or its supporting frames were already in existence prior to its incorporation, notwithstanding its claim that it had obtained evidence to that effect.

18.In Longest Profit (Hong Kong) Limited v Appeal Tribunal (Buildings), CACV 60/2013, 29 January 2014, Lam VP emphasised the duty of an appellant to put forward evidence in support of an appeal at a preliminary hearing before the BAT.  At paragraphs 24 and 25 of his judgment, the following was stated:-

“[24] Since the purpose of the preliminary hearing is to determine whether there is any good cause for holding a full hearing, an appellant should at least place before the Tribunal witness statements and expert reports supporting its appeal in order to discharge its evidential burden. As shown in the history of the proceedings, there was ample time for the Applicant to prepare such evidence before the preliminary hearing and it only chose to place before the Tribunal very limited materials which were not of much assistance to its case. In light of the statutory scheme providing for preliminary hearing under s 49, an appellant should not withhold the preparation of its evidence until the Tribunal decided that good cause had been shown for a full hearing. In so doing, such an appellant assumed the risk that the Tribunal was not persuaded by the limited materials that good cause had been shown for a full hearing. This was precisely what had happened in the present case. For reasons best known to the Applicant, it had decided not to put its cards on the table and it had done very little in terms of the preparation of the evidence for its appeal before the preliminary hearing. In our judgment, it only had itself to blame when the risk materialised.

[25] Whilst it is correct that preliminary hearings are to weed out unmeritorious appeals, whether an appeal has merits must be determined by reference to the materials placed before the Tribunal by the parties.  If an appellant simply chose to rely on bold assertions unsupported by concrete evidence, he should not be surprised to find the Tribunal rejecting his appeal on the ground that no good cause has been shown for holding a full hearing.”

19.At paragraph 40 of the Decision, the BAT found that the Applicant was the person for whom Signboard had been erected or was being erected within the meaning of Section 24(2)(c)(i) of the Ordinance.  That provision states as follows:-

“An order made under subsection (1) shall be served on –

(c) in the case of building works the subject matter of which is a signboard –

(i) the person for whom the signboard has been erected or is being erected; or

(ii) if that person cannot be found, the person who would receive any rent or other money consideration if the signboard were hired out or the person who is receiving such rent or money consideration; or

(iii) if the persons referred to in subparagraphs (i) and (ii) cannot be found, the owner of the land or premises on which the signboard has been erected or is being erected.”

20.It seems clear from the Decision that the BAT made the said finding not on the basis that the Signboard was erected for the Applicant at the time of its erection, but on the basis that at the time of the issue and service of the Order the Signboard had been or was being erected for the Applicant (see paragraphs 33 to 39 of the Decision).  In other words, the BAT’s decision was not dependent on any finding that the Signboard was erected by the Applicant.  The finding of fact that the Signboard had been or was being erected for the Applicant was, in my view, open to the BAT on the materials before it.  I do not consider that the BAT made any error of fact as alleged by the Applicant.

21.In passing, I should mention that since the Applicant has not raised as a ground of judicial review any error of law by the BAT, I do not propose to express any view on the true construction of Section 24(2)(c)(i) of the Ordinance, particularly since I have not had the benefit of hearing full submissions from both sides.

22.The second ground of judicial review is procedural impropriety, the complaint being that the BAT refused to hold a full hearing to determine the questions of whether (i) the supporting frames of the Signboard had existed prior to the incorporation of the Applicant, and (ii) the Applicant was entitled to remove the Signboard.  In view of the approach adopted by the BAT as analysed above, the question of whether the supporting frames of the Signboard had existed prior to the incorporation of the Applicant was not a material question which had to be answered by the BAT.  Further, I do consider it necessary for the BAT to hold a full hearing for the purpose of determining whether the Applicant was entitled to remove the Signboard, the Applicant being obliged as a matter of law to comply with the Order.

23.The BAT is empowered, under Section 49(2) of the Ordinance, to dismiss an appeal without holding a full hearing if it determines that no good cause has been shown for holding one.  In the present case, the BAT, having come to the conclusion that the Applicant was the person for whom Signboard had been erected or was being erected at the time of the issue and service of the Order, was entitled, in my view, to conclude at paragraph 59 of the Decision that the appeal should be dismissed without holding a full hearing.

24.In short, the two grounds of judicial review raised by the Applicant are not reasonably arguable.

DISPOSITION

25.For the foregoing reasons, the application for leave to apply for judicial review is dismissed.

26.I further order the Applicant to pay the costs of the BA (to be taxed if not agreed) incurred in resisting the application, notwithstanding the usual order that there be no order as to costs in an unsuccessful leave application, in view of the following matters:-

(1) in light of the evidence produced by the BA and submissions made on behalf of the BA, it is plain that the application has no merits;

(2) the Applicant pursues the application to advance its own private interest; and

(3) the BA attended the hearing at the court’s invitation or direction, and provided substantial assistance to the court which enables the court to resolve the present application economically and expeditiously.

The Applicant was absent

The Putative Respondent was absent

Ms Tessa Chan, GC of Department of Justice, for the Putative Interested Party