Chan Jor Kin Kenneth v. Authorized Persons', Registered Structural Engineers' and Registered Geotechnical Engineers' Disciplinary Board

HCMP 1558/2020

[2022] HKCFI 2087

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1558 OF 2020

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JUDGMENT

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Introduction

1.Mr Chan Jor Kin Kenneth, the appellant, is an authorized person registered under the Buildings Ordinance, Cap 123. 

2.On 20 May 2016, the roof of the Chan Tai Ho Multi-purpose Hall at the Hu Fa Kuang Sports Centre at the City University of Hong Kong collapsed.  That was three months after a green roofing system and irrigation system was installed on top of the roof.  The appellant had previously advised that the system was “within the design loading of imposed load and service load of [the roof]”.  I shall adopt the terms “the Hall”, “the Roof” and “the Sports Centre” below.  I shall refer to the roofing system as “the GC System”.

3.In May 2018, the Building Authority commenced disciplinary proceedings against the appellant pursuant to section 7(1) of the Buildings Ordinance, and laid four charges against him in respect of the collapse incident.  The hearing took place in 2019 and lasted five days. 

4.On 24 October 2019, the last day of the hearing, the Authorized Persons’, Registered Structural Engineers and Registered Geotechnical Engineers’ Disciplinary Board (“the Board”) delivered the verdict orally (without giving reasons at that time), and found that the four charges had been proved.  The Board ordered that (1) the appellant be reprimanded, (2) the appellant should pay the costs of the Building Authority and the inquiry, and (3) the findings and orders be published in the Gazette. 

5.On 27 August 2020, the Board gave written reasons for its decision.

6.By originating motion filed on 24 September 2020, the appellant appeals against the reasons for the decision, relying on six grounds.

7.This is the hearing of the appeal.  The appellant was represented by Mr John Reading, SC and Mr Solomon Lam.  Mr Reading stated that the appeal is in relation to the Board’s findings on the four charges and the costs orders.  The appellant does not appeal against the penalty of reprimand.

8.The Building Authority appeared in this appeal as an interested party and was represented by Mr Anthony Chan, counsel, and Ms Carmen Siu, Senior Government Counsel of the Department of Justice.

Appeal out of time?

9.At the hearing, Mr Chan raised a procedural point “in passing”.  It was submitted that the appeal has been brought out of time and the appellant has not applied for a time extension. 

10.Section 7(4) of the Buildings Ordinance provides that an appeal from the Board lies to the Court of First Instance.  Subject to a few exceptions (which do not apply here), an appeal to the Court of First Instance is governed by Order 55 of the Rules of the High Court.  On the time to commence an appeal, Order 55, rule 4 provides:

“(2) The notice must be served, and the appeal entered, within 28 days after the date of the judgment, order, determination or other decision against which the appeal is brought.

(3) In the case of an appeal against a judgment, order or decision of a court, the period specified in paragraph (2) shall be calculated from the date of the judgment or order or the date on which the decision was given.

(4) In the case of an appeal against an order, determination, award or other decision of a tribunal, government department or other person, the period specified in paragraph (2) shall be calculated from the date on which notice of the decision was given to the appellant by the person who made the decision or by a person authorized in that behalf to do so.” (underline added)

11.Mr Chan submitted that the 28-day period started to run from 24 October 2019, that is the date on which the Board made the orders orally.  If that is correct, the appeal has been brought out of time. On the other hand, Mr Reading contended that the period should start to run from the date when notice of the written reasons were given to the appellant. If Mr Reading is correct, the appeal is within time.  

12.It is ultimately an issue of construction of Order 55, rule 4(4).

13.There are conflicting Hong Kong and English authorities on this point.  Mr Chan referred me to the decision of Leong JA in Yue Bob Ken, Bobby v Hon Ying Chu HCMP 6366/1998, 24 December 1998, which was upheld by Chan CJHC and Liu JA on 23 February 1999, and the decision of the Divisional Court in Minister of Labour v Genner Iron & Steel Co (Wollescote) Ltd [1967] 1 WLR 1386.

14.In the Hong Kong decision, it was held that where a decision is made orally at a hearing, the aggrieved party has “notice of the decision” under Order 55, rule 4(4) at the hearing and accordingly time starts to run from that date. 

15.The difficulty with that decision, as pointed out by Mr Chan, is that the case concerned an application for leave to appeal from a decision of the Lands Tribunal.  An appeal from the Lands Tribunal lies to the Court of Appeal, not the Court of First Instance.  Hence, Order 55 has no application at all.  The applicable order governing that appeal should be Order 59 instead.  In Yue Bob Ken, Bobby, while the Court of Appeal’s ruling was directly on Order 55, rule 4(4), that rule itself in fact did not apply in the first place.

16.On the other hand, Minister of Labour is directly on point. It concerned the construction of Order 55, rule 4(4) of the Rules of the Supreme Court, which is identical to the rule in Hong Kong, save for the reference to “Minister” in the former.  There, the tribunal in question announced the decision orally and later recorded the decision with reasons and sent it to the aggrieved party.  It was held that the “notice” referred to in the rule meant a notice in writing and the time for appeal should start to run from the date when the document recording the decision was sent to the aggrieved party.   (Subsequent English authorities decided that time should start to run from when the document was received by the aggrieved party: Griffiths v Secretary of State for the Environment [1983] 2 AC 51 at 57C.  But this distinction between “sent” and “received” is not presently material.)

17.The reasoning in Minister of Labour is twofold. 

18.First, as a matter of common sense, a time limit for appeal ought to date from the time when the aggrieved party receives the reasons for the decision which he is entitled to have and, until he sees the detailed reasons, he cannot determine whether it is a proper case in which to appeal or settle his grounds of appeal: see 1388E-F. 

19.Secondly, the language in sub-rule (4) should be contrasted with that in sub-rule (3).  There is a significant change of language, as shown by the words underlined in the extract above.  In sub-rule (3), which governs orders and judgments of courts, the language is plain that the time should run from when the order or judgment was made.  By contrast, under sub-rule (4), which applies to tribunals etc, the relevant date is described differently.  It must have been contemplated that such persons, while being bound to give reasons, are not in the ordinary way expected to be able to formulate and give those reasons at the time of announcing the decision.  It was therefore held that under sub-rule (4), time should only run from when the written decision, with reasons given, was sent out.

20.The ruling in Minister of Labour is in direct conflict with Yue Bob Ken, Bobby.  It appears that neither decision has since been cited or applied in Hong Kong.  Mr Reading has not referred me to any authority on the construction of Order 55, rule 4. 

21.In light of the express distinction drawn in the rule between orders made by courts and those made by tribunals and the different language used for the two situations, I would be inclined to think that the construction arrived at in Minister of Labour is the correct one.

22.For the reasons spelt out below, I am of the view that there is no merit in any of the grounds of appeal.  Hence, the appeal ought to be dismissed on merits anyway, regardless of whether it is within time or not.  It is therefore unnecessary for me to make a formal ruling on the proper construction of Order 55, rule 4 in the present appeal.

The charges, the evidence and the decision

23.In the written decision of the Board, the four charges were referred to as “the Allegation”.  I set it out in full below:

“That, CHAN Jor Kin Kenneth, being the AP engaged by Sinoway Construction Engineering Limited (“Sinoway”), the Registered General Building Contractor appointed by CityU for the carrying out of various works in CityU’s campus, has been negligent and/or has misconducted himself in a professional way in his capacity as AP when providing professional advice in relation to the addition of a Removable Tray Green Roof System (hereafter referred to as “Greenery Cover”/“GC”) on top of the Roof and in the provision of an AP certificate dated 20 October 2015 and a letter dated 14 January 2016 in respect thereof, which gave rise to and/or caused and/or contributed to the overloading and the collapse of the Roof in that:

(1)  He wrongly assessed the loading capacity of the Roof for the addition of GC in that:

(a)  he quoted incorrect figures of the design imposed load and dead load, which were higher than that shown in the relevant approved plans;

(b)  he failed to reserve a minimum imposed load of 0.75 kPa for the Roof as required under regulation 17 of the Building (Construction) Regulations.

(2)  He wrongly certified that the addition of GC on the Roof was within the design loading capacity of the Roof.

(3)  Given the age of the Amenities and Sports Block and the Roof with long span steel truss system, he failed to examine and/or review the existing condition of the Roof before giving his advice for the addition of GC and/or failed to alert his client with a caveat to qualify his advice on its limitations.

(4)  The acts of (1), (2) and (3), either collectively or separately, had led to the contravention of regulation 6 of the Building (Construction) Regulations in that the Roof was subjected to a load beyond its proper bearing capacity, which gave rise to and/or caused and/or contributed to the collapse of the Roof on 20 May 2016.”

24.At the hearing, the Building Authority called three factual witnesses and three expert witnesses.  The latter were Ir Professor Chan Siu Lai, the Chair Professor in Computational Structural Engineering at the Department of Civil and Environmental Engineering of Hong Kong Polytechnic University, Mr Yu Kwok Hung, Chief Building Surveyor of the Buildings Department, and Mr Tang Hung Wai, Senior Structural Engineer also of the Buildings Department.

25.The appellant elected not to give evidence and called Ir Mok Kin Yau Daniel as an expert witness.

26.The Board found that the factual witnesses of the Building Authority were truthful witnesses.  The Board found that the Building Authority’s experts reports generally contained well-reasoned opinions and detailed analyses.  While the Board had no concern with Ir Mok’s competence and experience as an expert, where his opinion differed from the Building Authority’s experts, the Board preferred the latter unless Ir Mok had supplemented satisfactorily his opinion with good reasoning in his oral testimony. 

27.The Board found that the four charges had been proved and that the advice given by the appellant in relation to the GC System had fallen short of the standard of a competent authorized person and had amounted to negligence: see para 9.4 of the written decision. 

Legal principles

28.Section 7(4) governs the present appeal.  It provides:

“(a) Any authorized person … aggrieved by any order made in respect of him under this section may appeal to a judge of the Court of First Instance and upon any such appeal the judge may confirm, reverse or vary the order of the disciplinary board.

(b)  The practice in relation to any such appeal shall be subject to any rules of court made under the High Court Ordinance (Cap. 4)”

29.Order 55, rule 3(1) provides:

“An appeal to which this Order applies shall be by way of rehearing and must be brought by originating motion.”

30.In WKP v Chiu Chung Yee Charles [2018] 3 HKLRD 232, Lam VP explained what a rehearing entails in the context of Order 55, rule 3. 

“Although it is a rehearing (see O.55 r.3(1)), it is not conducted in complete disregard of the proceedings before the Guardianship Board or its decision. A rehearing is not the same as a retrial. … The court’s role in an appeal is to look into the original decision to see if there are mistakes such that the Court of Appeal should intervene. In the exercise of discretion, different judges, tribunals or boards may reasonably have different views, but it does not mean the court dealing with an appeal can replace the original views of the court, tribunal or board with its own views on these matters. On the contrary, the court dealing with an appeal must give proper weight to an earlier decision. An appellant must be able to point out that the trial judge or the tribunal or the board has erred on a point of law, departed from an applicable principle, misapprehended the facts, taken into account irrelevant matters or exercised its discretion without any reasonable basis whatsoever before the court would intervene.” (underline added)

31.In an appeal by way of rehearing, in respect of findings of facts made by a tribunal, it is well-settled that the appeal court can only intervene if they are plainly wrong.  The court in an appeal should focus on the question whether the tribunal has fallen in palpable errors which can give rise to grounds for intervention by the court. 

32.It would therefore not be helpful if the appellant only repeats submissions already advanced and considered by the tribunal.  The starting point should be the judgment of the tribunal and the identification of palpable errors in the judgment which warrant intervention.  The question to ask is whether it was permissible for the tribunal to make the findings of fact which he did in the face of the evidence as a whole.  The appeal court’s task is to identify a mistake in the tribunal’s evaluation of the evidence that is sufficiently material to undermine his conclusions.

33.In his grounds of appeal, an appellant should therefore identify errors of a nature which truly entitles the appeal court to intervene with a finding of fact.   The grounds must pinpoint the palpable errors of the tribunal.  It is impermissible for the appellant to simply regurgitate his closing submissions on the evidence and the factual aspects of his case again with the hope that the appeal court may come to a different view from that of the tribunal. 

34.For a discussion of the above principles, see, eg, China Gold Finance Ltd v CIL Holdings Ltd CACV 11/2015, 27 November 2015, at paras 11 to 27.  The case concerned a civil appeal to the Court of Appeal.  But the principles discussed there on appeals against findings of facts should apply equally in appeals brought under Order 55, rule 3.

35.In an appeal from a disciplinary body, respect will be accorded to the opinion of a professional tribunal on technical matters.  The appropriate degree of deference will depend on the circumstances.  It is sensible for the court to be diffident about interfering with its assessment of matters calling for professional judgment and expertise, particularly where professional misconduct is alleged in connection with technical or clinical judgments or competence.  This is to be contrasted with where the alleged misconduct does not concern areas of professional competence: Sin Chung Yin Ronald v Dental Council (2016) 19 HKCFAR 528 at paras 45 to 49.    

Background

36.Before addressing the six grounds of appeal, I should set out some background information relating to the collapse incident and highlight the two documents referred to in the introductory paragraph of the Allegation.

37.Sinoway was the building contractor appointed by the University for the carrying out of works at the campus.  The works included the addition of the GC System, which was described as “a Removable Tray Green Roof System” in the written decision, on top of the Roof of the Hall.

38.The appellant was engaged by Sinoway to provide service and advice in relation to the GC System.  The capacity in which the appellant acted and the scope of the services were hotly disputed at the hearing before the Board and are in issue in this appeal.

39.The Hall is located on the 5/F of the Sports Centre.

40.The Roof comprised two elements in the main. First, the primary structural element was a space truss system, which was situated at the 7/F of the Sports Centre.  Second, the space truss system supported a reinforced concrete slab, which was situated at the 8/F.

41.The approved dead load of the space truss system was 4.25 kPa whereas its approved imposed load was 0.75 kPa.  “kPa” means kilopascal and is a unit of pressure and stress.  In essence, these figures represent the loading capacity of the space truss system, which was one of the key issues in determining why the Roof collapsed.

42.The GC System was a modular green roof assemblage laid on the Roof with substrate materials, soil, pre-planted modular trays and drainage and irrigation system. 

43.At the hearing before the Board, it was the case of the Building Authority that before the installation of the GC System, the Roof had already exceeded its loading capacity as stipulated in the approved plans. 

44.The BA’s evidence was that the dead load of the layers above the space truss system before the installation was 5.75 kPa.  This already exceeded the approved dead load of the space truss system of 4.25 kPa by 35.5%.  The dead load of the GC System in its dry condition was 1.05 kPa. Hence, after its addition to the Roof, the aggregate dead load on the space truss system was 6.8 kPa.  If the GC System was fully soaked, its dead load would increase to 1.32 kPa.  This would make the aggregate dead load on the space truss system 7.07 kPa.  See paras 6.1.1(4), 8.5.7, 8.7.5 of the written decision.

45.It was the finding of the Board that apart from the addition of the GC System, there were intermediary factors giving rise to the overloading and collapse of the Roof.  That included the unauthorised thickening of the screeding at the Roof and the accumulation of rain water: see paras 8.7.11 of the written decision.

46.The first letter referred to in the Allegation was dated 20 October 2015 and was from the appellant to Sinoway.  I shall refer to this as “the Certificate”.  It read:

“Dear Mr MAK,

AP certificate for addition of removable tray green roof system at City University of Hong Kong, Tat Chee Avenue, Kowloon, Hong Kong

After reviewing the design of Removable Tray Green Roof System (the System) prepared by Ecobuild Engineering and Technology Company Limited, the installation of the System is not classified as Building Works as defined in Section 2 of Cap 123 Buildings Ordinance.

After checking the design load retrieved from the approved plans and calculations from Buildings Department, the design load of the proposed location to install the System are tabulated in the following tables:

Table 1: Information extracted from structural calculations

Building Name	Location	Design Loading (kPa)	Publishing Date	Remarks
…	…	…	…	…
Amenities Building Phase I (Amenities and Sports Block)	7/F and Roof	Imposed Load: 1.5	7th Apr 1987	Nil
		Dead Load: 10.25

Table 2: Information extracted from approved structural plans

Building Name	Location	Design Loading (kPa)	Drawing no.	Approved Date	Remarks
Amenities Building Phase II (Zone 9)	Upper Roof (11/F)	Imposed Load: 0.75(*)	2/AM/S9	15th August 1992	(*): Maintenance access path shall be provided on the roof, which shall not be paved with the System.
		Dead Load: 3.44
…	…	…	…	…	…

With reference to the catalogue and measurement report of saturated weight of the System carried out by the supplier “Green’s Eco Build and Design” (Annex 1), the weight of the System is 66.88kg/sqm (i.e. 0.656kPa), which is within the design loading of imposed load and service load of such location.

Yours sincerely

For and on behalf of

KC Surveyors Limited

[signature]

CHAN Jor Kin Kenneth

Chartered Surveyor

B.Sc.(Leics.), FRICS, FHKIS, FCABE, RPS(BS)

Authorised Person (Surveyor)”

47.Two things are of note.  First, the appellant quoted incorrect loading figures in Table 1.  The dead load and imposed load were incorrectly stated as 10.25 kPa and 1.5 kPa, which were higher than the correct figures of 4.25 kPa and 0.75 kPa.  Second, the appellant stated that the weight of the GC System was 0.656 kPa.

48.The second letter referred to in the Allegation was dated 14 January 2016 and was also from the appellant to Sinoway.  I shall refer to this as “the Letter”.  I reproduce an extract below:

“Dear Mr MAK,

Addition of removable tray green roof system at City University of Hong Kong, Tat Chee Avenue, Kowloon, Hong Kong

Clarification for the addition of removable tray green roof system

I opine that the addition of removable tray green roof system is not classified as Building Works as defined in Section 2 of Buildings Ordinance (Cap. 123); upgrading of safety provisions to current requirements (for instance, installation of protective barriers, etc.) is not statutory requirements.

Yours sincerely

[signature]

CHAN Jor Kin Kenneth

Chartered Surveyor

B.Sc.(Leics.), FRICS, FHKIS, FCABE, RPS(BS)

Authorised Person (Surveyor)”

Ground 1

49.Under Ground 1, the appellant submits that the Board erred in finding that the appellant acted in his capacity as an authorized person when providing professional advice in relation to the addition of the GC System.  Paras 8.2.10, 8.2.14 and 8.2.17 of the written decision are referred to. 

50.Ground 1 is in relation to the first paragraph of the Allegation.

51.It is a challenge of the Board’s finding of fact.  It is incumbent on the appellant to identify an error or errors made by the Board in making the finding which the court should intervene.  He has failed to do so.  This ground therefore does not even get off the ground.  In any event, Mr Chan submitted that the Board’s finding is plainly unassailable. I agree.    

52.The correspondence exchanged between the appellant and Sinoway (acting through a Mr Mak), the Certificate and the Letter clearly demonstrate that the appellant provided his advice to Sinoway in relation to the GC System in his capacity as an authorized person, and that his duty was to advise Sinoway whether the installation of the GC System would require submissions to the Buildings Department for structural works beforehand.

53.The correspondence is as follows.

54.On 5 March, 2015, Mr Mak emailed the appellant saying:

“Pls. send me the quote for the following AP services:

- Issuing a letter to City U confirming that the addition of green roof (under certain condition) does not require BD submission

- BD submission for addition of a 10 cubic meter water tank on roof.”

55.On 9 March 2015, the appellant responded:

“We shall charge HK$3,000.00 for each of the green roofs that need to be certified for no BD submission being required and HK$10,000.00 for the water tank submission.”

56.On 16 June 2015, Mr Mak emailed again:

“Pls. quote me the cost for the following:

- AP cost for BD submission for the new water tank

- AP checking and confirmation on the exempted woks of Green Roof installation.

Pls. find attached tentative drawing of the water tank and the green roof location for your reference.”

57.On 19 June 2015, Mr Mak wrote to the appellant asking him to “Pls. check attached the green roof scope.  I have specified the area with upper roof and main roof.”   

58.On 27 July 2015, Mr Mak further emailed the appellant and provided him with information concerning the loading of the GC System and asked “Is it sufficient for you to confirm that is not required for BD submission?”

59.On 31 August 2015, Mr Mak supplied the appellant with further materials on the loading issue. 

60.On 20 October 2015, the appellant issued the Certificate.

61.On 14 January 2016, the appellant issued the Letter.

62.It is plain that at all times, as between Sinoway and the appellant, Sinoway sought the service from the appellant qua authorized person and the appellant provided his service and advice in that capacity.  The Certificate was expressly entitled “AP certificate”.  Both the Certificate and the Letter were signed by the appellant with his qualifications, including “Authorised Person (Surveyor)”, explicitly listed underneath his signature.

63.Mr Reading contended that the appellant was not engaged by Sinoway to undertake the role of authorized person in relation to the GC System.  His main reasoning was that the appellant was not performing the statutory role of an authorized person at the time he signed the Certificate.  The Certificate was not a statutory form triggering the approval process.  He further submitted that the appellant all along only said that he provided advice to Sinoway from the perspective of an authorized person, but not in his capacity as the authorized person.  These two situations, Mr Reading submitted, were very different, and the duties under the former were very limited. The appellant’s role was limited to checking and confirming on the exempted works of the installation of the GC System.

64.There is no merit in these submissions.  On the facts, it is patently clear that Sinoway retained the appellant as authorized person to confirm whether the GC System would not require BD submissions.  Whether the Certificate was a statutory form is beside the point.  Furthermore, it is not understood what difference there is between advising “from the perspective of an authorized person” and doing so “in his capacity as the authorized person”.

65.These submissions were a repetition of what was submitted to the Board at the hearing.  In the written decision, the Board had dealt with them: see paras 8.2.3 to 8.2.30.  The Board had considered all the relevant correspondence, the Certificate and the Letter when arriving at the finding of fact.  The appellant has failed to identify any error of the Board.  There is no proper ground on which to interfere with its finding. 

66.Ground 1 should be dismissed.

Ground 2

67.Under Ground 2, the appellant submits that the Board erred in finding that the appellant held himself out as competent in assessing the load capacity without any qualification when there was insufficient evidence to support this finding, and further the Board erred in law in applying to the appellant the standard of a competent registered structural engineer. Para 8.3.12 of the written decision is referred to.

68.Ground 2 is in relation to para (1)(a) of the Allegation.

69.The appellant submits that he was not assessing the loading capacity of the Roof since it was not his duty.

70.Clause 5.05H of the Employer’s Requirements of the Contract of the Roof Greening Project stated:

“The existing loading capacity of the upper roofs is about 0.75kPa. The contractor is required to submit document endorsed by qualified structural engineer to show the imposed load due to the green roof system not exceeding the loading capacity of the roofs”

71.It is submitted that the assessment of the loading capacity of the Roof should be considered by a qualified structural engineer. The appellant was not responsible for assessing the loading capacity of the Roof as he was not a qualified structural engineer.

72.It is further submitted that the purpose of the Certificate was only to confirm for Sinoway that the GC System was not classified as building works under section 2 of the Buildings Ordinance.

73.It is obviously an error in law for the Board to adopt the standard of a competent registered structural engineer when the appellant was a registered authorized person and the disciplinary action proceeded against the appellant on the basis that he was an authorized person.

74.This ground is a rehash of the submissions made before the Board and was dealt with in paras 8.3.6 to 8.3.12 of the written decision.  Relevantly, it concluded at paras 8.3.11 and 8.3.12:

“8.3.11 The Board also finds that, as seen above, the Respondent in fact assessed the loading capacity of the Roof’s Space Truss with reference to the GC work and gave an unqualified opinion that the GC work was within the design loading. It is clear to the Board that the information regarding loading was not merely extracted as a reference for Sinoway, but was offered as part of the Respondent’s analysis in reaching the conclusion that the GC work was not building works within the meaning of the BO.

8.3.12 The Board agrees with Mr. Chan’s submission that when the Respondent held himself out as competent in assessing the loading capacity without any qualification, he would be judged based on the standard of a competent RSE. Even though Mr. Lam refers to the Employer’s Requirements of the Contract of the Roof Greening Project which requires the contractor to submit documents endorsed by qualified structural engineer to show the imposed load due to the green roof system not exceeding the loading capacity of the roofs, the Board is of the view that this shows precisely that the Respondent, if was aware of the existence of the requirement, should have advised Sinoway to consult a structural engineer instead of holding himself out as competent in giving the advice.” (underline added)

75.In my view, the Board’s factual finding in this regard was well supported by the evidence, ie that set out in relation to Ground 1.  More specifically, it is plain that the opinion given by the appellant in the Certificate was unequivocal.  Whether the appellant had held himself out as competent in assessing the loading capacity was a matter of fact.  Here, the appellant has failed to pinpoint any palpable error in the Board’s reasoning.  There is no room for me to overturn the finding of fact. The contractual term between Sinoway and the University, relied on by the appellant, is beside the point.

76.Furthermore, if a person is unqualified but holds himself out as possessing a skill, he will be judged by the standards of a reasonably competent qualified person: Jackson & Powell on Professional Liability (8^th ed) at para 9-099.  On the basis of the above factual finding, the Board was correct in judging the appellant based on the standard of a competent registered structural engineer.

77.Lastly, if it were not the duty of an authorized person to assess the loading capacity of the Roof, it would be incumbent on the appellant to advise Sinoway to consult a registered structural engineer. Instead, the appellant gave the advice without doing so.  He had fallen short of the standard of conduct expected of a competent authorized person exercising　reasonable care and skill in the circumstances.

78.For these reasons, there is no merit in Ground 2.

Grounds 3 and 4

79.In respect of Ground 3, the appellant argues that the Board, in interpreting the Building (Construction) Regulations (Cap 123B)[1] (“the Regulations”) and the Code of Practice for Dead and Imposed Loads 2011 (“the Code”), erred in finding that even if the GC work was to be regarded as imposed load, an additional 0.75 kPa must be reserved as the minimum imposed load.  Paras 8.4.9 and 8.4.10 of the written decision are referred to. 

80.For Ground 4, the appellant submits that by accepting the Building Authority’s submission in interpreting the Regulations and the Code, the Board erred in finding that the GC System was a dead load.  Para 8.5.8 of the written decision is referred to. 

81.Grounds 3 and 4 are in relation to paras (1)(b) and (2) of the Allegation respectively.

82.Mr Reading elaborated the ground as follows:

(1)  In the Regulations, the term “dead load” means “the weight of walls, floors, roofs, finishes, permanent partitions and other permanent construction”, and the term “imposed load” means “load other than dead load or wind load”.  (The term “wind load” means “any load due to the effects of wind pressure or suction”.)

(2)  The GC System was a removable tray system.  It was therefore not a permanent construction.  Hence it was not “dead load” under the Regulations.

(3)  The Code did not apply to the GC System either. The evidence adduced by the Building Authority was that there was no specific category in the Code governing roofs with greenery.  Clause 2.2.3.2 of the Code governs those works which are permanent in nature.  Hence it had no application to the GC System as dead load.

(4)  The GC System, being a removable tray system, was similar to the machinery and library loading, which are classified as live load.  Where there is already a GC live load (taken as 0.75 kPa), there was no need to further apply the minimum maintenance live load of 0.75 kPa on top of the Roof.

(5)  Furthermore, in the Certificate, the appellant stated; “(*): Maintenance access path shall be provided on the roof, which shall not be paved with the System”.  As such, the maintenance load of 0.75 kPa and the GC loading would not have co-existed if the appellant’s advice had been followed.

(6)  There was therefore no mistake made by the appellant.

(7)  Mr Reading also drew support from a practice note issued by the Building Authority after the collapse incident, PNAP ADV-35.  It provided that the weight of soil, waterproofing and drainage system and plants for greening shall be taken as dead loads.  It is reasonable to draw the inference that the Building Authority issued the practice note trying to standardise the practice only after the collapse incident.  Before that, there was no standard practice in relation to the GC System.

(8)  In short, the Board misinterpreted the statutory provisions.

83.In reply, Mr Chan emphasised that the findings of the Board were based on its professional judgment and expertise on highly technical issues, and therefore the court should be circumspect about interfering with its assessments in this regard.

84.In gist, the Board found that the appellant was wrong in treating the loading of the GC System as live load.  It should be regarded as dead load: see paras 8.4.2, 8.5.1 to 8.5.10 of the written decision.  Even if the appellant were right, he failed to reserve a minimum imposed load of 0.75 kPa for the Roof as required under the Regulations and clause 3.4 of the Code: see paras 8.4.3 to 8.4.20 of the written decision.

85.Regulation 17(1) of the Regulations provided that “[t]he imposed load on any building, street, building works or street works shall be the greatest applied load likely to arise from the intended use or purpose of the building, street, building works or street works (including forces exerted by the adjacent ground)”.

86.Clause 2.1.1 of the Code states:

“Dead loads shall include self-weight of all items of permanent nature that will act continuously throughout the service life of the building, street, building works, street works, and the variations of its magnitude with time are insignificant. It shall be taken to include but not limited to the following:

…

(c) non-structural elements (e.g. finishes, roofings, surfacing and coverings, linings, kerbs, suspended ceilings, insulation, earth and ballast);

…

(f)  soil fill, waterproofing and drainage system for gardening, greenery or planting.”

87.Roofings are specifically identified in the Code as forming part of the dead load.  Clause 2.2.3.2 provides further guidance on the determination of dead loads for roofings: “Where a roof is to be provided with greenery, the weight of soil, waterproofing and drainage system, and plants for greenery shall be taken as dead loads.”

88.Mr Chan submitted that on a plain reading of the Code, the GC System, which included the weight of soil, waterproofing and drainage system, and plants, should all be regarded as dead load.  The conclusion was reinforced by the expert evidence of Mr Tang and Professor Chan.

89.I agree with Mr Chan’s submissions.  The various drawings of the GC System show that it consisted of layers of growth media, vegetation, drainage and irrigation system.  The GC System should properly be regarded as permanent in nature and its weight should be regarded as dead load.

90.In any event, the question of what should properly be classified as dead load or imposed load is a technical matter.  Due deference should be paid to the expertise of the Board.  Its finding was supported by the statute, the Code and expert evidence.  The Board dealt with all these adequately in the written decision.

91.Accordingly, there is no proper ground on which the court should intervene in the Board’s finding that the GC System was dead load under the Regulations. 

92.Even assuming that the GC System were a live load, there was a statutory requirement that the minimum live loading to be provided for should be 0.75 kPa: regulation 25(3)(a) of the Regulations and clause 8(a) of Table VII.  This minimum requirement was to cater for activities such as general maintenance work and not for the installation of the GC System.  That was the evidence of Mr Tang, which was accepted by the Board: see paras 8.4.9 to 8.4.10, 8.4.14 to 8.4.15 and 8.5.9. 

93.Hence, even if the appellant were right to treat the loading of the GC System as live load, he ought to have reserved the minimum of 0.75 kPa as the minimum imposed load in his assessment of the loading capacity of the Roof.  He had failed to do so.  The reserved imposed load would therefore be less than 0.75 kPa.  That was contrary to the statutory requirement.  The Board had clearly come to the correct conclusion.

94.Lastly, the appellant’s reliance on the remark made in Table 2 in the Certificate (see para 46 above) is misplaced.  That remark was made in respect of the “Amenities Building Phase II”, not the Sports Centre or the Roof.

95.There is no merit in Grounds 3 and 4.

Ground 5

96.Under Ground 5, the appellant submits that the Board erred in finding that:

(1)  the appellant had a duty to inspect the site to discharge his duty as an authorized person in circumstances where, even if the site inspection had taken place, the fact that previously installed screeding variously exceeded the thickness specified in the original Buildings Department approved plans thus adding to the weight imposed on the roof trusses, would not have been detectable by such an inspection.  Para 8.6.17 of the written decision is referred to. 

(2)  the appellant had a duty to alert his client with a caveat to qualify his advice.  Para 8.6.24 of the written decision is referred to. 

97.Ground 5 is in relation to para (3) of the Allegation.

98.The appellant contends that he had no duty to check the existing conditions of the Roof.  He was not engaged by Sinoway to do so as he was not a statutory authorized person.  In any event, it would not have been possible to detect the unauthorised thickening of the screeding by visual inspection.

99.The contention is a repetition of the submissions made at the hearing.  The Board addressed the evidence adduced in this regard, including the evidence of Mr Tang, Mr Yu and Ir Mok: see paras 8.6.3 to 8.6.18 of the written decision.  These were findings arrived at by the Board based on its professional judgment and expertise. 

100.In essence, it was of the view that in light of the age of the Sports Centre and the Roof (approximately 25 years), the appellant should have checked the existing condition of the Roof, including conducting a visual inspection, for any irregularity such as unauthorised building works on site before giving his advice on the installation of the GC System.  The site inspection would enable him to be satisfied that the GC System would require no strengthening works.  The appellant had failed to do so and such failure amounted to negligence or professional misconduct. 

101.The Board’s finding on both the duty to inspect and the duty to alert was well supported by the evidence as well as good logic.  There is no room for the court to interfere with such finding.

102.This ground ought to be dismissed.

Ground 6

103.Under Ground 6, the appellant argues that:

(1)  the Board failed to give reasons for finding that paras (1) to (3) of the Allegation were factors which contributed to the collapse of the Roof; and

(2)  erred in finding that the appellant contributed to the collapse, contrary to the oral evidence of the Building Authority’s expert witness Professor Chan. Paras 8.7.6 and 8.7.11 of the written decision are referred to.

104.Ground 6 is in relation to:

(1)  The first paragraph of the Allegation; and

(2)  para (4) of the Allegation.

105.Mr Reading submitted that it is unclear how the Board came to the conclusion that the matters set out in paras (1) to (3) of the Allegation were contributing factors.  It would appear that the Board relied on Professor Chan’s opinion that the contributing factors comprised, among other things, overloading due to the installation of the GC System on the Roof.  In the absence of reasons given for this important finding, the appeal, Mr Reading submitted, should be allowed. 

106.Furthermore, the finding that Sinoway relied on the appellant’s advice on loading was unsupported by evidence.  There was also no evidence supporting any causal link between the appellant’s advice in the Certificate and the Letter and the overloading and collapse of the Roof. 

107.On the evidence:

(1)  Professor Chan gave evidence on the cause of the collapse without accusing the appellant specifically. 

(2)  He also confirmed that the Roof would only collapse when the loading reached 7.18 kPa.  However, the designed dead load and imposed loading plus the loading of the GC System (as per the approved plans) (ie 4.25 kPa + 0.75 kPa + 0.67 kPa) would not by themselves have caused the Roof to collapse. 

(3)  Furthermore, it was Professor Chan’s opinion that the Roof would not have collapsed if there were no thickening of the screeding on the Roof and that the GC System alone would not have caused the collapse.

108.Accordingly, the Board’s conclusion, Mr Reading submitted, was obviously wrong.

109.As regards the first part of this ground, the submission is untenable.  The Board gave detailed reasons in paras 8.7.1 to 8.7.11 why it found that paras (1) to (3) of the Allegation contributed to the collapse of the Roof.  It reviewed the evidence of Professor Chan, Mr Yu and Ir Mok, and spelt out its thinking process on the causation issue in those paragraphs.  More specifically, in paras 8.7.10 and 8.7.11, the Board commented on the acts of the appellant and the other contributing factors:

“8.7.10 The Board in mindful of the fact that the Allegation includes wordings of “gave rise to and/or caused and/or contributed to”. In the circumstances the consideration by the Board is not limited to whether there is a “direct” causal link and would include the situations where the advice has given rise or contributed to the collapse of the Roof.

8.7.11 Upon considering the evidence in totality, the Board finds that there is no doubt that the Respondent’s conducts in all of the paragraphs (1) to (3) of the Allegation are contributing factors to the collapse of the Roof.  Given there were intermediary factors giving rise to the collapse, such as the thickening of the screeding and the accumulation of rain water, the degree of which was not foreseeable precisely, the Board does not find that the Respondent’s acts have caused the collapse of the Roof, nor have the acts given rise to the collapse of the Roof.  The Board finds, however, there is no doubt that the Respondent’s acts in paragraphs (1) to (3), whether collectively or separately, have contributed to the collapse of the Roof.”

110.As regards the second part of the ground, Mr Chan disagreed with Mr Reading’s interpretation of the evidence.  Mr Chan submitted that the Board understood clearly and accepted Professor Chan’s evidence and also carefully reviewed and considered the evidence of other witnesses.  The evaluation of the evidence was recorded in the written decision: see paras 8.7.5 to 8.7.6 for Professor Chan’s evidence, para 8.7.8 for Mr Yu’s evidence and para 8.7.7 for Ir Mok’s evidence.  The Board’s conclusion, based on such evaluation, is not to be faulted.  I agree with Mr Chan’s submission.

111.As regards the thickening of the screeding, the Board found that it was a factor giving rise to the collapse.  Importantly, it found that if the appellant had carried out adequate checking of the existing condition of the Roof, or advised Sinoway to consult a registered structural engineer, the overloading condition of the Roof would have been revealed and that either proper strengthening works would have been carried out before the laying of the GC System or the installation would have to be abandoned. 

112.That was one of the reasons why the Board was of the view that while the appellant’s acts did not cause, or did not give rise to, the collapse of the Roof, they nonetheless contributed to the collapse: para 8.7.11.  That conclusion is, in my view, plainly correct.

113.Lastly, as regards the appellant’s contention that there was no evidence showing that Sinoway relied on the appellant’s advice, that is plainly wrong.  See the discussion in Ground 1 above.

114.On the whole, this ground is untenable and should be dismissed.

Conclusion

115.For the above reasons, there is no merit in any of the grounds put forward by the appellant.  I dismiss the appeal.

116.I make an order nisi that the appellant do pay the costs of the appeal of the Building Authority, with certificate for two counsel, to be taxed if not agreed.

Mr John Reading, SC and Mr Solomon Lam, instructed by Fung, Wong, Ng & Lam LLP Solicitors, for the appellant

The respondent was not represented and did not appear

Mr Anthony Chan, instructed by the Department of Justice, and Ms Carmen Siu, Senior Government Counsel, for the interested party