Wong Wai Yin v. Buildings Department

HCAL 1722/2020

[2020] HKCFI 3011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1722 OF 2020

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D E C I S I O N

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INTRODUCTION

1.This is an application for leave to apply for judicial review of the Buildings Department (“BD”)’s decision (“the Decision”) made on or about 16 October 2019 to prosecute the Applicant for failing, without reasonable excuse, to comply with an order (“the Demolition Order”) dated 18 July 2018 served on her under s 24(1) of the Buildings Ordinance, Cap 123 (“the Ordinance”), contrary to s 40(1BA) thereof.

2.In the Form 86, “Buildings Department” is referred to as the proposed respondent.  A Government department is not a legal entity which can sue or be sued in legal proceedings.  As confirmed by Mr Curlewis on behalf of the Applicant, the present application should be treated as one against the Director of Buildings (“the Director”). Accordingly, I order that the Director shall be substituted as the proposed respondent in this application.  All references to “Buildings Department” in the title of proceedings in court documents filed herein should be read as referring to the “Director of Buildings”.

BASIC FACTS

3.In 1983, the Applicant’s father (“Mr Wong”) purchased the property known as the whole of the House and the Ground thereof, No 28 Price Road, Hong Kong (“the Property”), and caused it to be assigned to his daughter (the Applicant) and his son (“the Brother”). Mr Wong was responsible for paying the deposit and all repayments of the mortgage loan taken out for the purchase of the Property.

4.Mr Wong (now 95 years old) and the Applicant have been residing in the Property since around 1983 up to the present day. Originally, the Brother also lived in the Property, but he has immigrated to Canada since around 2005.

5.In September 2016, BD received a report of unauthorized buildings works at the Property.  Upon a site inspection carried out on 31 October 2016, BD’s consultant found the existence of unauthorized building works there.  The relevant works were carried out without having first obtained from the Building Authority (“BA”)[1] his approval of building plans and consent for the commencement of works required under s 14 of the Ordinance.

6.On 22 February 2017, BD issued an advisory letter to the owner/occupier of the Property to remove the unauthorized building works.  The advice was not heeded.

7.On 18 July 2018, BA served the Demolition Order on the Applicant and the Brother as registered owners of the Property requiring them to demolish the unauthorized building works and reinstate the parts of the building so affected by the unauthorized building works in accordance with the plans approved by BA, with such works being required to be commenced within 90 days and completed within 180 days (ie on or before 14 January 2019).  The unauthorized building works in question comprised:

(1)     structures erected at the building facing the driveway of Jardine Terrace (“Item 1”); and

(2)     structures erected on and over the roof of the building (“Item 2”).

8.On 3 August 2018, the Applicant lodged an appeal against the Demolition Order to the Appeal Tribunal (Buildings Ordinance) (“BAT”), claiming that the unauthorized building works had been in existence for over 30 years since the purchase of the Property.  On 4 April 2019, the Applicant applied to withdraw her appeal, which was approved by BAT.  In §4 of the Applicant’s affirmation filed on 26 August 2020, the Applicant says that she has been advised by her solicitors that she has no ground to appeal against the Demolition Order.

9.After the withdrawal of the appeal, BD conducted a site inspection on 12 April 2019, and found that the works required under the Demolition Order had not yet been commenced.  BD issued a warning letter to the Applicant and the Brother on 18 April 2019, stating that they had failed to complete the relevant works by 14 January 2019 as required by the Demolition Order, and BD was considering commencement of prosecution for their failure to comply with the Demolition Order.  The Applicant and the Brother were urged to take immediate steps to comply with the Demolition Order.

10.Notwithstanding the warning letter, the Applicant and the Brother failed to take action to comply with the Demolition Order.  The matter was then referred to the Legal Services Section of BD for prosecution.  Prior to actual commencement of prosecution, another site inspection was carried out on 4 October 2019.  It was found that the unauthorized building works remained intact on the site.

11.On 16 October 2019, the Applicant and the Brother were each summoned for the offence of failing, without reasonable excuse, to comply with the Demolition Order, contrary to s 40(1BA) of the Ordinance.

12.On 2 June 2020, Kok & Ha on behalf of the Applicant and the Brother wrote to BD requesting for the withdrawal of the summonses against their clients on the ground of “public interest”.  In that letter, it was said, amongst other matters, that:

(1)     the Brother left Hong Kong over 15 years ago and was then residing in Vancouver, BC, Canada;

(2)     the unauthorized building works were not dangerous and did not pose a risk to public health and safety, and did not fall within the categories of cases for prioritized prosecution under BD’s EB Division Manual Part II Section 8 Instruction No 7 - Guidelines for Instituting Prioritized Prosecution Against Non-complied Statutory Orders (“the Former Prosecution Guidelines”); and

(3)     Mr Wong, who was residing in the Property and suffering from infirmity, was the de facto patriarchal owner of the Property.

13.Pausing here, it is the evidence of Mr Tung Man Kit, Building Surveyor, that the Former Prosecution Guidelines were cancelled on 3 March 2016, and the relevant guidelines were incorporated in BD’s EB Division Manual Part II Section 8 Instruction No 3 - Prosecution under the Buildings Ordinance in relation to Outstanding Removal Orders (“the Current Prosecution Guidelines”).  This was confirmed in an internal email from the Chief Building Surveyor dated 3 March 2016.

14.After checking the immigration records of the Brother, it was confirmed that he had been residing outside Hong Kong as stated in Kok & Ha’s letter dated 2 June 2020.  BD agreed to withdraw the summons against the Brother, and made a relevant application to the Eastern Magistrates’ Courts on 28 August 2020.  The withdrawal application was approved by the Magistrate on 1 September 2020.  BD was not, however, prepared to withdraw the summons against the Applicant because:

(1)     the contention that the unauthorized building works were not dangerous and did not pose a risk to public health and safety was not a reasonable excuse for non-compliance with the Demolition Order;

(2)     as stated in §7 of BD’s Instruction 5.8 - Prosecution Policy for Prompt and Rigorous Action (“the Prosecution Policy”), BA’s power or duty to prosecute was not limited to those cases for prioritized prosecution referred to in §6 thereof and all cases should be judged on their own merits; and

(3)     the Applicant was one of the registered owners of the Property at all material times while Mr Wong was not.  Mr Wong was not charged for any offence, and thus the “Old Age and Infirmity” consideration relied upon by Kok & Ha was considered not applicable.

15.By a letter dated 3 September 2020, BD informed Kok & Ha that the request to withdraw the summons against the Applicant would not be acceded to.

APPLICATION FOR JUDICIAL REVIEW

16.On 26 August 2020, the Applicant made the present application for leave to apply for judicial review of the Decision.  In the Form 86, it is contended that BD failed to “adhere to their own prosecution policy and internal guidelines” (§3), and that the decision to prosecute and to continue to prosecute the Applicant was wrong “for the reason that it did not apply its policy on prioritizing prosecution on the grounds of health and safety and it did not apply its own internal guidelines correctly” (§6).  There is no further elaboration in the Form 86 on how BA failed to adhere to their own prosecution policy or apply its internal guidelines correctly.

17.Under “Relief Sought”, the Applicant seeks an order of mandamus that “the respondent shall withdraw the charge against the applicant or in the alternative the respondent shall re-consider its decision to prosecute the applicant and give written reasons to the applicant’s solicitors if the respondent does not withdraw the charge”.

DISCUSSION

18.The Applicant does not dispute that the works objected to by BD are unauthorized building works, but questions BD’s decision to prosecute her for failing to comply with the Demolition Order.  The principal point raised by Mr Curlewis on behalf of the Applicant is that the prosecution of the Applicant is not in the “public interest”.  Mr Curlewis also submits that:

(1)     Mr Wong’s health and well-being would be adversely affected by the work required to swiftly remove the unauthorized building works;

(2)     although Mr Wong is not a defendant in the criminal prosecution, he is the de facto patriarchal owner of the Property and will continue to reside there until his passing;

(3)     swift compliance with the Demolition Order is by itself onerous enough without a prosecution; and

(4)     prosecuting the children of Mr Wong “for the sins of their father” is most unreasonable in all the circumstances and is clearly not in the public interest.

19.Under §5.3 the Statement of Prosecution Policy and Practice published by the Department of Justice, which is followed by BD[2], there are two components to a prosecution decision: “The first is that the admissible evidence available is sufficient to justify instituting or continuing proceedings.  The second is that the general public interest must require that the prosecution be conducted”.  The first component is not in issue in the present case.  Mr Curlewis has not argued that there is no sufficient admissible evidence to justify instituting or continuing proceedings against the Applicant.  In so far as the second component (public interest) is concerned, that is generally a matter for the prosecuting authority to consider.  It is well established that the court in an application for judicial review can only interfere with a prosecution decision in very limited circumstances where it can be said the decision is outside the constitutional limits of the Secretary for Justice’s power to control criminal prosecutions in Hong Kong under Article 63 of the Basic Law.  The Secretary has overall and ultimate control of all criminal prosecutions in the Magistrates’ Courts in Hong Kong even where the relevant prosecution is conducted by an officer of a Government department other than the Department of Justice (see ss 12 and 13 of the Magistrate Ordinance, Cap 227).  While there are no fixed categories of cases where a prosecution decision may be regarded as falling outside the constitutional limits of the Secretary for Justice, three particular situations have been recognized: (i) where the Secretary acts in obedience to political instruction, (ii) bad faith, and (iii) rigid fettering of prosecutorial discretion (see RV v Director of Immigration [2008] 4 HKLRD 539, at §§71-75 per Hartmann J (as he then was)).  The relevant authorities were reviewed by Wilson Chan J in Sino Bright Enterprises Co Ltd v Secretary for Justice [2020] 1 HKLRD 446, at §§27-41, and I shall not repeat that analysis here.

20.None of the matters raised by Mr Curlewis can begin to make out an arguable case for the court to interfere with the Director’s consideration of where the public interest lies, or his decision to prosecute, or continue to prosecute, the Applicant for the offence for which she has been charged.

21.In respect of the various specific matters relied upon by Mr Curlewis referred to in §18 above, my comments are as follows:

(1)     The prosecution of the Applicant and compliance by her of the Demolition Order are two different matters.  Regardless of whether she is prosecuted for the offence under s 40(1BA) of the Ordinance, she is under a legal duty to comply with the Demolition Order.

(2)     Hence, the disturbance which may be caused to Mr Wong arising from the works required to be carried out under the Demolition Order is inevitable, and is not dependent on whether the Applicant is prosecuted for the said offence.

(3)     The fact that Mr Wong is the de facto patriarchal owner of the Property and will continue to reside in the Property is not relevant to question of whether the Applicant ought to be prosecuted for the said offence.

(4)     It is incorrect to describe the present situation as prosecuting the children of Mr Wong “for the sins of their father”.  The Applicant is prosecuted for having allegedly failed, without reasonable excuse, to comply with the Demolition Order, contrary to s 40(1BA) of the Ordinance.  Whether she is guilty of that offence is to be determined in accordance with the ordinary criminal process.

22.The contention raised in the Form 86 that BD has failed to apply or adhere to their own internal guidelines and prosecution policy in relation to the prosecution of the Applicant is without merits:

(1)     The applicable internal guidelines and prosecution policy are to be found in (i) BD’s EB Division Manual Part II Section 6 Instruction No 4 - Guidelines on Structural Danger (“the Guidelines on Structural Danger”); (ii) the Current Prosecution Guidelines referred to in §13 above; and (iii) the Prosecution Policy referred to in §14 above.

(2)     §3(iv) of the Guidelines on Structural Danger provides that “a UBW of more than 1 storey or a UBW built on another UBW” is considered to be in “imminent structural danger” that requires immediate enforcement action for its removal and/or reinstatement of the affected parent structure.

(3)     In the Current Prosecution Guidelines -

(a)     §1 states that under the Ordinance, any person who fails to comply with a removal order against unauthorized building works without reasonable excuse shall commit an offence.  With regard to outstanding orders, vigorous prosecution under s 40(1BA) or (1BB) demonstrates to the public the determination of BD in enforcing the orders and serves a deterrent effect to negate some owners’ delaying tactics.  Hence, whenever strong prima facie evidence of an offence under s 40(1AA) is identified during an inspection, team leaders should make a recommendation in the inspection report whether the offender concerned should be prosecuted.

(b)     §3 states that in view of the large number of outstanding removal orders and in order to make the most effective use of the available resources, team leaders should exercise their professional judgment when considering instigation of prosecution action.  In particular, sub-paragraph (a)(iv) provides that UBW posing serious hazard to life and limb, such as structures with imminent structural danger as specified in the Guidelines on Structure Danger, is a relevant consideration for instigation of prosecution.

(c)     §4 further states that the cases mentioned in §3 are not listed in any order of importance and all cases should be acted on as and when they come to attention.  In addition, BA’s power or duty to prosecute is not limited to those cases, and all cases should be judged on their own merits.

(4)     In the Prosecution Policy -

(a)     §1 states that the document is a directive for prompt and rigorous prosecution and related action under the Ordinance.

(b)     §5 states that the aim is to prosecute wherever and whenever appropriate.  However, as BD’s resources are not unlimited, there may be a need for considering priorities in prosecution.

(c)     §6(d) provides that priority in prosecution should be given to, inter alia, cases where an order issued under the Ordinance is not complied with.

(d)     §7 provides that BA’s power or duty to prosecute is not limited to cases falling within §6 and all cases should be judged on their own merits.

(e)     §13 provides that in a number of provisions of the Ordinance, “reasonable excuse” provides a defence.  The possibility that a defendant may advance such an argument does not constitute a reason for not prosecuting.  Usually, a defendant has an evidential burden to prove to the Courts that they have a reasonable excuse for the offending act.

(5)     In the present case, Item 1 comprises (i) unauthorized building works of more than 1 storey, and (ii) an unauthorized structure built on another unauthorized structure[3].  Hence, Item 1 is classified as being of “imminent structural danger” attracting immediate enforcement action for its removal under §3(iv) of the Guidelines on Structure Danger, and is one for prioritized prosecution under §3 of the Current Prosecution Guidelines.

(6)     Further, the present case involves a non-compliance with an order issued under the Ordinance.  It is thus one for prioritized prosecution under §6(d) of the Prosecution Policy.

(7)     In short, I do not consider that BD has failed to apply or adhere to their own internal guidelines or prosecution policy in this case.

(8)     In his Skeleton Argument dated 18 November 2020 and at the hearing on 30 November 2020, Mr Curlewis mentioned the possibility of adducing further evidence to show that the unauthorized buildings works complained of by BD are not dangerous to life and limb.  There is before the court a short letter from Mr So King Sheng, a structural engineer, dated 16 April 2020 in which Mr So states that “[t]he order now served on [the Applicant] is not on safety ground.  The alleged unauthorized buildings works have been solidly constructed and they have stood there for more than 30 years”. That letter as a whole reads more like a plea in mitigation than an expert report.  It is not mentioned in the letter what inspection, investigation or structural analysis Mr So has carried out to form the above views. Anyhow, even if the unauthorized building works complained of by BD in the present case do not pose any imminent structural danger at this moment, that fact cannot affect BD’s policy to give priority in prosecution to situations regarded as being of imminent structural danger, including the situation where a UBW is of more than 1 storey, or a UBW is built on another UBW.

(9)     I should add that BD’s policies mentioned above are only policies for prioritization of enforcement action and/or prosecution. They are not policies for the “toleration” of any unauthorized building works (see Sky Wide Development Ltd v Building Authority, HCAL 116/2008 (24 October 2008), at §§10 and 18; Technic Investment Co Ltd v Appeal Tribunal (Buildings) [2012] 3 HKLRD 245, at §27; Wong Tin Chor v The Appeal Tribunal (Buildings Ordinance) [2020] HKCFI 562, at §20(1)), and do not confer on any person who has committed offence(s) under the Ordinance any immunity from prosecution.  Even if, for the sake of argument, the Director has acted contrary to the said policies (which is not the case here), that is still not a valid or sufficient ground for the court to interfere with the Director’s prosecution decision in an application for judicial review.

(10)     I do not consider that any additional evidence on the structural safety of the unauthorized building works in this case would affect the outcome of the intended application for judicial review.

23.There are two other matters that I should briefly deal with.  First, in support of the contention that her prosecution would not be in the public interest, the Applicant says that she was mistaken when Mr Wong purchased the Property 36 years ago that there were no UBWs on the Property.  She relies on §12 of the Prosecution Policy, which sets out a number of situations which “may be an indication that proceedings are not required”, including the situation where “the offence was committed as a result of a genuine mistake or misunderstanding”.  It should be noted, however, that the offence for which the Applicant is currently charged is an offence for failure to comply with an order served under s 24(1) of the Ordinance. There is no basis to suggest that she committed such offence as a result of any mistake or misunderstanding, particularly having regarding to the advisory letter dated 22 February 2017, the letter enclosing the Demolition Order dated 18 July 2018, and the warning letter dated 18 April 2019 previously served on her by BD.

24.Second, Mr Curlewis mentions that the Applicant will be at risk of repeated prosecutions under §3(c) of the Current Prosecution Guidelines if she continues to fail to comply with the Demolition Order, because the offence for which she is currently charged is a “continuous” offence.  I am unable to see the relevance of this matter.  The Applicant has accepted that she has no ground to challenge the Demolition Order.  It follows that she ought to comply with it, regardless of any prosecution under s 40(1BA) of the Ordinance.  It is within her powers to avoid being charged again by carrying out the works required by the Demolition Order.

25.In all, I consider that the intended application for judicial review is not reasonably arguable, and does not have a realistic prospect of success.  Having reached this conclusion, it is not necessary to consider the question of delay.  There would be no purpose in granting any extension of time to the Applicant to apply for leave to apply for judicial review (if required) in such circumstances.

DISPOSITION

26.The application for leave to apply for judicial review is dismissed.

27.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), and do not have to be repeated here.  I consider the Applicant should pay the costs of the Director in this case, because (i) the application clearly lacks merits, (ii) the Director filed evidence and attended the hearing of the application for leave to apply for judicial review upon the court’s directions, and has provided substantial and helpful assistance to the court; and (iii) the Applicant has effectively had a hearing on the merits of her intended application for judicial review.  Mr Curlewis submits that there should be no order as to costs because BD failed to inform the Applicant of the change of its internal policy referred to in §13 above until the filing of the Affirmation of Mr Tung Man Kit on 30 September 2020.  However, it seems to me that, regardless of any change of BD’s internal policy, the Applicant has no valid basis to challenge the Director’s prosecution decision in this case by way of an application for judicial review.  I make an order that the Applicant shall pay the Director’s costs of this application, including the costs of the hearing on 30 November 2020, to be taxed if not agreed.

Mr Eric F Curlewis, instructed by Kok & Ha, for the Applicant

Ms Jess Chan, Senior Government Counsel of Department of Justice, for the Putative Respondent