Tang Ping Wai and Another v. Building Appeal Tribunal and Another

CACV000405/2000

CACV 405/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 405 OF 2000

(ON APPEAL FROM HCAL NO. 802/2000)

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Coram: Hon Mayo VP and Wong JA in Court

Date of Hearing: 8 December 2000

Date of Judgment: 8 December 2000

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. The applicants are the owners of an antique shop in Hollywood Road. It is accepted by them that a canopy attached to the building and a bay window are unauthorised structures under the Buildings Ordinance, Cap. 123.

2. R2 required the applicants to demolish the structures and reinstate the building in accordance with plans approved by them.

3. The applicants appealed to R1. There was a full hearing on 25 November 1999 and in effect the appeal was dismissed.

4. The applicants then sought to judicially review this decision. An application was made to Chung J for leave and this was refused. It is this refusal which is the subject matter of this appeal.

5. The amended particulars of the grounds of which reliefs are sought (sic) are as follows:

"1. In exercising its discretionary power under Section 24 of the Building Ordinance, the Building Authority failed to re-consider or to sufficiently re-consider the issuance of the demolition orders or to consider or to sufficiently consider to withdraw the same after the Applicants had presented evidence to the Building Authority on the safety of the Structures by way of a safety certificate issued by Mr Choy Bing Wing, a structural engineer.

2. The Building Authority failed to give any or any sufficient consideration to exercise its discretionary power under Section 24A of the Building Ordinance to issue orders to replace/substitute the demolition orders previously issued.

3. In considering the Building Authority's exercise of its discretionary power under Section 24 of the Building Ordinance, the Building Appeal Tribunal ('the Tribunal') had failed to direct itself the following matters :-

(a) the Building Authority failed to carry out any proper inspection of the Structures to test the safety of the same despite the Applicants had put forward evidence on the safety of the Structures by way of a safety certificate issued by Mr Choy Bing Wing, a structural engineer;

(b) the Building Authority failed to re-consider or to sufficiently re-consider the issuance or the withdrawal of the demolition orders after being presented with the above-mentioned safety-certificate by the Applicants.

4. In considering the Building Authority's exercise of its discretionary power under Section 24 of the Building Ordinance, Cap.123, the Appeal Tribunal had misdirected itself of the following matters :-

(a) that the Applicants had the onus to prove the safety of the Structures;

(b) that the Applicant had a very high burden to prove the safety of the Structures.

(c) that the Building Authority was under no duty at all to carry out any proper inspection of the Structures despite the Applicants had put forward evidence that the Structures are in fact safe.

5. The Tribunal failed to consider or to consider sufficiently that the demolition orders can be replaced/substituted by orders made under Section 24A of the Building Ordinance.

6. The Tribunal failed to consider or to consider sufficiently to give directions to the Building Authority under Section 53(2) to carry out a proper inspection on the safety of the Structures so as to enable the Tribunal to consider to substitute the demolition orders with appropriate 24A orders.

7. The Tribunal misdirected itself in law that Section 24A did not apply in the Applicants' case.

8. In assessing the weight of the evidence of Mr Choy Bing Wing, the Tribunal wrongly took into the irrelevant considerations that Mr Choy gave hearsay evidence (re: original decorator).

9. In considering the safety of the Structures and the weight of the evidence of Mr Choy, the Tribunal failed to exercise its power to make inspection under Section 53(1) or to direct the Building Authority to make inspection under Section 53(2) in respect of the steel beams which hold the canopies, the size and spacing of the bolts and the spacing of the steel beams."

6. During the course of the application before Chung J counsel representing the applicants conceded that where a structure was an "illegal structure" it was "usually legitimate" for the Building Authority to exercise their powers under s 24 or s 24A of the Ordinance to order the demolition of the illegal structure.

7. The only observation we would make on this would be to change the words "usually legitimate" to "invariably the case".

8. The fact that the original illegal structures have never been subjected to scrutiny by the Building Authority would mean that even if variations were to be effected upon them they may still not comply with the necessary requirements.

9. The grounds of appeal are as follows:

"1. that the Learned Judge was wrong in law to allow the conclusion reached by the Building Appeal Tribunal ('the Tribunal') that the safe certificate issued by Mr. Choy Bing Wing, a structural engineer, in respect of the Structures is superficial and unacceptable while no contrary evidence adduced by the 2nd Respondent to proof the Structures unsafe or likely to cause injury to any persons. In particular, the Learned Judge failed to consider that where none of unsafe evidence was shown, the Court shall consider whether the safe evidence constitutes 'arguable case' or not.

2. Further, the Learned Judge was wrong in law to assess whether the safe evidence given by Mr. Choy is superficial, instead of considering his evidence to constitutes an 'arguable case' or not, in absence of any unsafe evidence shown. At least, the question of whether Mr. Choy's evidence is superficial is subject to the argument in the full hearing of Judicial Review.

3. The Applicants further submitted that the Learned Judge has held that it is arguable that the Tribunal's conclusion concerning S24A did not apply was wrong. Therefore the Learned Judge shall rule whether the Appellants has established an 'arguable case' as to the reasonableness of exercise of discretionary power of the Tribunal under S24A."

10. The short answer to grounds one and two is that it is immaterial whether Mr Choy's evidence was wrongly rejected. Even if the evidence had been accepted the fact that the structures were undoubtedly illegal structures would have entitled R2 to issue the demolition orders. It is however clear that Mr Choy did place reliance upon a third parties' opinion and this of itself would have justified R1 in not attaching weight to his testimony.

11. The matter raised in ground 3 does not assist the applicants. It is immaterial whether the powers which have been exercised by R2 have been invoked by either section.

12. R1 was clearly right to reject this appeal whether R2 was proceeding under s 24 or s 24A.

13. The application for leave to apply for judicial review was misconceived and unarguable and the Judge was right to refuse granting leave for it to proceed. Accordingly this appeal is dismissed.

Representation:

Mr Paul K N Wu, instructed by Messrs Gary Mak, Dennis Wong & Chang, for the applicants

Mr Robert Andrews, instructed by the Department of Justice, for the 2nd respondent