李滿堯 v. 屋宇署建築事務監督

HCAL 594 & 599/2018

[2018] HKCFI 2636

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 594 OF 2018

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 599 OF 2018

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(Heard together)

Before: Hon Chow J in Court

Date of Hearing: 22 November 2018

Date of Judgment: 5 December 2018

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JUDGMENT

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INTRODUCTION

1.There are before the court two applications for leave to apply for judicial review of a number of decisions made by the Appeal Tribunal (Buildings) (“the BAT”).  For reasons which will be explained in this decision, the two applications are dismissed.

HCAL 594/2018

2.This application concerns certain unauthorized building works on Portion C10 of the Roof of Wing Hing Industrial Building (Rear Block), 14 Hing Yip Street, Kowloon (“Property 1”).  The applicant (“Mr Lee”) is an owner of Property 1.  The works take the form of a sizeable metal structure with windows.  The building structure was not erected in accordance with the relevant approved building plans.

3.On 21 May 2014, the Building Authority issued a building order pursuant to Section 21(1) of the Buildings Ordinance, Cap 123 (“the Ordinance”) requiring the owners of Property 1 to demolish the building structure and reinstate the parts of the building so affected in accordance with the plans approved by the Building Authority, such works to be commenced within 30 days and completed within 60 days.  The building order was not complied with by Mr Lee, despite further letters issued by the Building Authority on 23 March 2015 and 24 September 2015 respectively.

4.By a letter to the BAT dated 5 April 2016, Mr Lee lodged a purported appeal against the building order (“the First Appeal”). On 12 April 2016, the BAT informed Mr Lee that since the First Appeal was lodged after the expiry of the statutory time limit of 21 days for giving notice of appeal under Section 47 of the Ordinance, it would not be further dealt with.

5.By a letter dated 27 May 2016, the Building Authority refused Mr Lee’s request for (i) an extension of time to comply with the building order, or (ii) rescission of the building order (“the Refusal Decision”).

6.By a letter to the BAT dated 7 June 2016, Mr Lee lodged a purported appeal (‘the Second Appeal”) against the Refusal Decision.

7.The BAT held a preliminary hearing of the Second Appeal and heard the parties on 21 August 2017 and 7 November 2017 respectively.  By a written decision dated 1 March 2018, the BAT dismissed the Second Appeal on the following grounds:

(1) Upon the true construction of Section 47, the time limit of 21 days to lodge an appeal against a decision of the Building Authority to the BAT was mandatory, and the BAT had no power to extend such time limit.  The previous decision of the BAT to reject the First Appeal on the ground that the relevant notice of appeal was given out of time was correct.

(2) The Refusal Decision was not a decision made by the Building Authority “in the exercise of a discretion conferred on him under this Ordinance” within the meaning of Section 44(1) of the Ordinance which could form the proper subject matter of an appeal under Section 44 of the Ordinance.  Accordingly, Mr Lee’s letter dated 7 June 2016 was not a valid notice of appeal.

(3) The fact that the Secretary to the BAT accepted Mr Lee’s letter dated 7 June 2016 for registration and numbering purposes did not mean that the Building Authority was not entitled to object to the jurisdiction of the BAT to entertain Mr Lee’s purported appeal.

8.The BAT also expressed the view, in paragraph 14 of the written decision, that Mr Lee’s grounds of objection to the validity of the building order were not valid.  In particular, the BAT considered that:

(1) Section 14AA of the Ordinance had no application because the works for the erection of the metal structure on Property 1 did not appear to be “minor works” under the Building (Minor Works) Regulation, Cap 123N;

(2) the erection of the metal structure on Property 1 constituted building works as defined in Section 2 of the Ordinance and required the Building Authority’s prior approval and consent under Section 14 of the Ordinance which was not obtained;

(3) Section 41(3) of the Ordinance had no application because the relevant works were not building works “in” a building (as held by Bokhary PJ in Mariner International Hotels Ltd v Atlas Ltd (2007) 10 HKCFAR 1, at paragraph 52);

(4) Section 41(3B) of the Ordinance had no application because the relevant works were not designated exempted works that were prescribed in the regulations;

(5) Section 18 of the Ordinance had no application because the present case did not involve the erection of “shoring” for any building; and

(6) Section 39C of the Ordinance had no application because the relevant works were not prescribed building works under the Building (Minor Works) Regulation.

9.In my view, the BAT is correct in law in respect of the 3 points mentioned in paragraph 7 above:

(1) The mandatory nature of the time limit for appeal under Section 47 of the Ordinance is governed by the decision of the Court of Appeal in The Appeal Tribunal v Peter A de Kantzow and Another [1992] 1 HKLR 55.  In that case, the Court of Appeal held that the time limit for giving a notice of appeal under Schedule I to the Buildings Ordinance was imperative, not directory, and its requirements could not be waived by the Building Authority.  Although there have since been some amendments to the statutory provisions relating to appeals against decisions made by the Building Authority under the Ordinance, the reasoning of the Court of Appeal regarding the nature of the time limit for appeal is equally applicable to the current statutory regime.

(2) In view of the mandatory nature of the time limit for appeal, it must follow that such time limit cannot be “extended” by the mere device of seeking an extension or rescission of a building order from the Building Authority and utilizing the Building Authority’s response as a fresh decision for the purpose of an appeal under Section 47 of the Ordinance.  Accordingly, the Refusal Decision cannot be regarded as an appealable “decision” for the purpose of Section 44(1) of the Ordinance.

(3) It is, I consider, obvious that the mere fact that the Secretary to the BAT accepted Mr Lee’s letter dated 7 June 2016 for registration and numbering purposes cannot affect the legal question of whether the Second Appeal is a valid appeal.

10.For the above reasons, I consider that BAT’s decision to reject the Second Appeal to be correct in law.  In any event, I also agree with the BAT’s observations in paragraph 14 of its written decision that the underlying appeal against the building order has no merit.

11.None of the matters raised by the applicant in this application gives rise to any arguable ground of judicial review against the BAT’s decision.

12.There is one other matter that I should deal with.  Although Mr Lee appeared in person at the hearing, he requested that Mr Lam Chit Man (“Mr Lam”) should be permitted to make oral submissions on his behalf.  This request was objected to by Ms Chan, Government Counsel, on behalf of the Building Authority.  The court heard Mr Lam (on a de bene esse basis), and informed the parties that it would deal with the question of whether Mr Lam ought to be permitted to make submissions on behalf of Mr Lee in the judgment to be handed down in due course.  At the hearing, Mr Lee informed the court that the affirmations and written submissions filed in these proceedings were prepared by Mr Lam, and he adopted the contents of those documents in support of his application.  There is no evidence to show that Mr Lam possesses any special knowledge, training or expertise which would make it appropriate for him to be permitted to make submissions on behalf of Mr Lee. Also, the submissions that Mr Lam in fact made add nothing of substance to what has already been stated in the affirmations and submissions.  Overall, there is no good reason why Mr Lam should be permitted to represent, or make submissions, on behalf of Mr Lee at the hearing.  In any event, having considered such submissions as were made by Mr Lam, I do not consider that any reasonable grounds for judicial review have been disclosed in Mr Lee’s application.

HCAL 599/2018

13.This application relates to 2 items of unauthorized buildings works, namely:

(1) removal of a fire resisting door at the entrance to Factory C4 on 13/F, Wing Hing Industrial Building (Rear Block), 14 Hing Yip Street, Kowloon (“Property 2”), and installation of a glazing door of inadequate fire rating in place of the fire resisting door; and

(2) erection of a sizable metal structure on and over Portion C4 of the Main Roof of Wing Hing Industrial Building (Rear Block), 14 Hing Yip Street, Kowloon (“Property 3”).

These works were not carried out in accordance with the relevant approved building plans.

14.On 21 May 2014, the Building Authority issued 2 building orders pursuant to Section 21(1) of the Ordinance requiring Madam Choy Hung Chu (“Madam Choy”), being the registered owner of Property 2 and Property 3, to:

(1) demolish the glazing door on Property 2 and reinstate the parts of the building so affected in accordance with the plans approved by the Building Authority; and

(2) demolish the metal structure on Property 3 and reinstate the parts of the building so affected in accordance with the plans approved by the Building Authority,

such works to be commenced within 30 days and completed within 60 days.

15.By letters to the BAT dated 29 May 2014, Mr Lam purportedly as the authorized representative of Madam Choy lodged appeals against the 1^st and 2^nd building orders.

16.The BAT held a preliminary hearing of the appeals and heard the parties on 25 July 2017.  By a written decision dated 10 January 2018, the BAT dismissed the appeals.

17.In so far as the appeal against the 1^st building order was concerned, the BAT held that:

(1) the applicant removed the originally approved fire resisting door and installed in its place another door (ie the glazing door);

(2) the applicant failed to produce any evidence, in particular, any report or certificate issued by a certified laboratory, to prove the fire resistance quality of the glazing door;

(3) the works carried out by the applicant fell outside the scope of Section 39C (1) of the Ordinance because they were not prescribed building works under the Building (Minor Works) Regulation; and

(4) although the works might not affect the structure of the building, in view of the failure of the applicant to show that the glazing door satisfied the requisite fire resistance standard, the Building Authority was entitled to require the applicant to reinstate the fire resisting door at Property 2 in accordance with the plans approved by the Building Authority.

18.As submitted by the Building Authority, once building works are shown to have been carried out otherwise than in accordance with the relevant approved building plans, the evidential burden shifts to the appellant to show that the works in question are not unauthorized building works (see Blendoran Limited v Appeal Tribunal (Buildings), HCAL 25/2015 (5 September 2016), at paragraphs 18 to 24 per Au-Yeung J; see also Ko Siu Luen v Appeal Tribunal (Buildings) [2012] 1 HKLRD 149, at paragraph 39 per Au J).

19.In so far as the appeal against the 2^nd building order was concerned, the BAT held that:

(1) the erection of the metal structure on Property 3 constituted building works as defined in Section 2 and required the Building Authority’s prior approval and consent under Section 14 which was not obtained;

(2) the fact that the Building Authority had not previously taken enforcement action in view of his enforcement policy could not change the law or turn something unlawful into something lawful;

(3) Section 14AA of the Ordinance had no application because the relevant works were not “minor works” under the Building (Minor Works) Regulation;

(4) Section 39C(1) of the Ordinance had no application because the relevant works were not prescribed building works under the Building (Minor Works) Regulation;

(5) the fact that the applicant had paid rates and management fees for the use of the metal structure could not change the law;

(6) Section 41(2) of the Ordinance had no application because the relevant works were not “erected or constructed in accordance with the laws of Hong Kong”;

(7) Section 41(3) of the Ordinance had no application because the relevant works were not building works “in” a building (as held by Bokhary PJ in Mariner International Hotels Ltd v Atlas Ltd (2007) 10 HKCFAR 1, at paragraph 52); and

(8) Section 41(3C) of the Ordinance had no application because the relevant works were not drainage works.

20.Mr Lam, purportedly as the authorised representative of Madam Choy, made an application for leave to apply for judicial review of the BAT’s decisions by filing (i) a Form 86 dated 10 April 2018 which was signed by him only, and (ii) an affirmation made by him on 9 April 2018.  Madam Choy did not appear at the hearing on 22 November 2018.  Instead, Mr Lam appeared at the hearing purportedly as Madam Choy’s authorised representative.

21.In my view, Mr Lam ought, strictly speaking, to be regarded as the applicant for the purpose of the application in HCAL 599/2018. It is, however, questionable whether he has any standing to make the application.  From what Mr Lam said at the hearing, it would appear that he was formerly the husband of Madam Choy, and has since the date of the building orders become the registered owner of Property 2 and Property 3.  It is not necessary to resolve the question of standing in the instant case because I consider the BAT’s decisions mentioned in paragraph 17 and 19 above to be correct in law.  None of the matters raised by Mr Lam gives rise to any arguable ground of judicial review against the BAT’s decisions.

22.I should add that if the present application for judicial review ought to be regarded as an application by Madam Choy, she was absent at the hearing.

(1) As mentioned in this court’s previous judgment in Easy Appvertising (Hunter) Limited v Appeal Tribunal (Buildings), HCAL 1099/2017 (16 October 2018), at paragraphs 12 to 14, where an applicant fails to appear at an oral hearing convened to consider his or her application for leave to apply for judicial review, the court may, in the exercise of its discretion, dismiss the application without consideration of its merits.

(2) On this ground alone, I would dismiss the application for leave to apply for judicial review.

(3) In any event, for reasons mentioned above, the application would fail on the merit.

DISPOSITION

23.The two applications are not reasonably arguable and have no reasonable prospects of success, and are therefore dismissed.

24.The principles governing an award of costs in an unsuccessful application for leave to apply for judicial review are well settled (see Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841, at paragraph 17).  I consider that the Building Authority should be entitled to be paid its costs in these applications, because:

(1) The present applications clearly lack any substantive merits.

(2) The applicants are pursuing these applications solely to advance their personal interests, and not for any public interest reasons.

(3) The Building Authority attended the hearing at the invitation of the court, and has provided substantial and helpful assistance to the court.

(4) The applicants have, effectively, had a hearing on the merits.

25.Accordingly, I order Mr Lee and Mr Lam to pay the costs of the Building Authority in the two applications in HCAL 594 and 599 of 2018 respectively, including the costs of the hearing on 22 November 2018, to be taxed if not agreed.

26.In view of the technical nature of the issues raised in these applications, the present judgment is written in the English language notwithstanding the fact that the hearing on 22 November 2018 was conducted in Cantonese.  If required, a translation of the judgment into the Chinese language may be provided upon the application of the applicants.

The Applicants acting in person

Ms Tessa Chan Pik Kei, GC instructed by Department of Justice, for the Putative Respondent