HKSAR v. Chow Shing Kee Investment Co Ltd

HCMA 513/2018

[2020] HKCFI 178

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 513 OF 2018

(ON APPEAL FROM ESS NO 23272 OF 2017)

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BETWEEN

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REASONS FOR DECISION

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1.The applicant, a limited company, was originally summonsed and convicted of non-compliance of a building order [1](“BO”) to dismantle an illegal structure, namely, two large metal frames mounted on the outside wall of a supermarket for supporting air-conditioners.

2.I dismissed the appeal against conviction and handed down judgment on 3 October 2019.  Now Mr. Hui SC leading counsel Mr. Lewis Law for the applicant took out a Motion of Notice[2] to ask this court to certify the following two questions to be points of law of great and general importance:

“(1)- What is the meaning of the words “connected to” in section 24 (2A) (a) of the Buildings Ordinance?

(2)- In considering “reasonable excuse” for failing to comply with a building order, which required the recipient to remove unauthorized structures, under section 40(1BA) of the Buildings Ordinance, whether the Court should have regard to the legal and/or practical consequences arising from the removal of those structures?”

3.Here I will recap the essential facts of the case as follows:

“The applicant rented out the premises in question to others who ran the place as a supermarket. To provide ventilation to the supermarket, two massive air-conditioners were used and held in place outside the supermarket by two large metal frames which formed the subject matters of the illegal structures and were connected to the supermarket by way of piping or ducts. Not in dispute were the facts that the applicant encountered no difficulty in removing the metal frames, but the consequential difficulty in relocating the air-conditioning units meant the place could no longer be used as a supermarket without proper ventilation.”

4.It was argued on appeal for the applicant that such piping or ducts could not be regarded as “connected to” within the meaning of the provision of section 24(2A), it had to be something in the form of building works.

5.It is submitted by Mr. Hui SC that the construction adopted by the Magistrate and endorsed by this court is difficult to reconcile with the legislative purpose and enforcement imperatives underlying the provision and may well lead to anomalous situations - some examples are given to illustrate the point - for example:

“If non-building or non-building works can be used as medium of connection, then, within a building, a transformer room on ground floor is connected to a flat on say 7th floor through the electric cable and wiring network; a water tank on the roof is also connected to that flat through the water pipes and valves…”

6.In regard to “reasonable excuse”, Mr. Hui SC submitted that the applicant’s predicament was not the economic loss for not being able to continue the shop’s use as a supermarket but instead the applicant’s breach of its other legal duties, as landowner, to ensure effectual ventilation and prevent emanation of nuisance to neighboring landowners.

7.In opposing the application, Mr. Wong SADPP (Acting) argued that insofar as question (1) is concerned, it turns on how the established principles of statutory interpretation are to be applied to the term “connected to” under section 24(2A) of the Buildings Ordinance, in the specific context and background of this case.  The finding is fact-sensitive and involves no point of law, let alone one of great and general importance.

8.Regarding question (2), Mr. Wong said that in light of the infinite factual matrix which may be sought as reasonable excuse, the determination of “reasonable excuse” under section 40(1BA) of the Buildings Ordinance is wholly fact-sensitive and question (2) does not involve a point of law.

9.In confirming the decision of the learned Magistrate, I have set out my reasons in my judgement (Please see paras. 16 to 30 for Q1 and 31 to 40 for Q2), and I do not intend to repeat them here.  Suffice it to say that the whole affair was an application of those words “Connected to or reasonable excuse” – their natural meaning – to a particular factual situation.  It is purely a question of facts.

10.For the reasons given above, the proposed questions of law do not amount to a point of law of great and general importance.  I refuse to certify the two questions proposed and dismiss the application.

Mr Beney Wong SADPP(Ag), of the Department of Justice, for the respondent

Mr Martin Hui SC, leading Mr Lewis Law, instructed by M/s K & L Gates, for the applicant