Aggressive Construction Company Ltd v. Director of Buildings (in His Capacity As the Building Authority) and Another

HCMP 952/2025

[2025] HKCFI 3907

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 952 OF 2025

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DECISION

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1.The starting point is that the Appellant has amended its Notice of Originating Motion on 13th August 2025 (“the ANOM”), after the Respondents already filed their evidence on 22nd July 2025, raising new points and grounds which the Respondents has not had the chance to deal with in their evidence. Those new points are supported by the evidence set out in the Appellant’s reply evidence filed on 12th August 2025. Thus the Respondents have not yet had the chance to address, in evidence, parts of the Appellant’s case in the way in which they are now formulated.

2.This is therefore not a case of the Respondents seeking to adduce new evidence after a prescribed deadline or stage in the proceedings has passed, or in circumstances where the rules of court or a court order requires special grounds to be shown for the adducing of evidence, so that authorities such as Tian Hongmei v Zhang Wei [2023] HKCFI 2675 are not to the point (that case concerned an attempt to adduce evidence in an interlocutory application; in that situation, RHC O.32 r.11A provides that no further evidence may be adduced unless it appears to the court that there are exceptional circumstances justifying it).

3.If anything, it is a case of the Appellant seeking to add new grounds of appeal or to supplement its existing grounds at a late stage, and adducing evidence in support of such grounds. The initial affirmation evidence of the Appellant (Affirmation of Lam Yuk Lun of 11th June 2025) was brief and did not provide the details of the allegations which have now been put forward in its reply evidence. As Wise Union Industries Ltd v Hong Kong Science and Technology, unreported, HCAL 12/2009, 21st September 2009, A Cheung J (as Cheung CJ then was) shows, a late application to amend would normally need to pass a “fairly high threshold”. In the present case, the provisions of RHC O.55 r.6 allow an amendment of the notice of motion not less than 7 days before the day appointed for the hearing of the appeal, so that the Appellant was able to amend its Notice of Originating Motion at a relatively late stage. However, it does not follow that the Respondent should be deprived of a proper opportunity to respond to the new and supplemental grounds and evidence.

4.Mr Yu SC submitted that O.25 r.1B nevertheless provides that a milestone date should not be varied unless there are exceptional circumstances justifying the variation, and that the Respondents failed to show such exceptional grounds; they have not even been able to identify what evidence they seek to put in, or to explain why they were unable to do it within the two weeks which have elapsed since the receipt of the ANOM and the Appellant’s reply evidence. Mr Yuen SC says that the Respondents’ evidence, on oath, is that despite their best efforts to address the new points, they simply have not been able to do so within the available time; they are able to identify the specific points which will be answered but not yet able to provide a draft of the answer.

5.The way in which these proceedings have developed, with the Appellant’s case being amended and additional supporting evidence adduced only after the Respondent’s evidence was filed, and with little time between the new grounds being advanced and today’s hearing, so that the Respondents have not been able to put forward evidence to answer the new grounds, constitute exceptional circumstances justifying the milestone date being moved.

6.The new and supplemental grounds and evidence comprise the following points.

6.1  ANOM paragraph 2b) – the Appellant now seeks to rely on two further letters of 11th April 2024 and 16th April 2024 as positive notifications that Mr Kan was being replaced by Mr Sidney Mak as the Appellant’s AS. The Respondents should have an opportunity to respond, as they are saying that the Buildings Department was not properly notified about the change of AS. Whilst it may be the case that these letters were already included in the thousands of pages of evidence that have been put into evidence so far, the Appellant is now seeking to formally rely on these as part of the grounds of appeal.

6.2  ANOM paragraph 3f) – the Appellant says that insofar as the Respondent relies on the 3 fatal incidents in July 2020, September 2022 and October 2023, the facts of those incidents were entirely different and “there is no evidence of systemic issues with safety management”. The Appellant would have known by 17th June 2025 that the Respondent was indeed relying on these incidents as this was indicated in Victor Chan’s 1st affirmation of 17th June 2025, but the Appellant’s complaint about this was only added to the ANOM on 13th August 2025. Mr Yu says that if the Respondents had relied on the incidents as part of their considerations in the making of the two Decisions under challenge, they ought surely to have adduced the evidence about such reliance in the first place. However, the fact remains that the Appellant did not complain about the way in which the Respondents analysed or relied on the 3 fatal incidents until the ANOM, and the Appellant clearly intends to make detailed submissions as to why such reliance is flawed.

6.2.1  In the Appellant’s first round of evidence (Lam Yuk Lun’s Affirmation of 11th June 2025 paragraph 34), it was said that the Respondents did not take into account various measures implemented by the Appellant after the 2022 Anderson Road Site Incident, but no reference was given to any documentary submissions made by the Appellant to the BD. Now, however, it seems that the Appellant seeks to refer to three such submissions (Lam Yuk Lun’s 3rd Affirmation paragraphs 16, 39, 48, 75). The Respondent should have the opportunity of responding to this.

6.2.2  The Appellant also now seeks to say that the occurrence of fatal accidents should not be a bar to renewal, citing the example of Hip Hing Construction Co Ltd (Lam Yuk Lun’s 3rd Affirmation paragraph 70). The Respondent should have the opportunity of responding to this.

6.2.3  Related to this, the Appellant also relies on various statistics to say that its safety record is better than average and has improved after adoption of its improvement measures: Lam Yuk Lun’s 3rd Affirmation paragraphs 72 to 74, 77. The Respondent should have the opportunity of responding to this.

6.3  ANOM paragraphs 5, 6 – the Appellant says that there was no basis for the CRC chairman to have a casting vote. Whilst it is said that this is an error of law, the Respondents ought to be given the opportunity to set out facts relevant to the assessment of whether there was an error of law.

6.4  ANOM paragraph 7 – the Appellant says that the CRC was not a committee that complied with s.8(3) of the Buildings Ordinance and paragraph 21 of the Practice Note for Registered Contractors 38. The Respondent has not had the opportunity to respond to this new allegation.

6.5  ANOM paragraph 3e) in relation to the 2nd Decision – the Appellant says that the policy was not only unpublished, but that it was irrational and an unlawful fetter on the BA’s discretion. The Respondent has not had the opportunity to respond to this new allegation. Mr Yu says that it has all along been the Appellant’s case that the policy was a blanket policy so that it should have been apparent that complaints of irrationality and fettering were being made. However, whilst the original Notice of Originating Motion complained of irrationality, the complaint about the unlawful fettering was not added until the ANOM. Whilst there may be a degree of overlap with the complaint of irrationality, the two complaints are not identical. (However, further evidence regarding the general practice of whether the BA allows addition of AS candidates when an application for renewal of registration is pending, as identified in the Respondents’ skeleton Annex E paragraph 10, should not be allowed – it has always been the Appellant’s case that this was an unpublished policy – see ANOM paragraph 3d) in relation to the 2nd Decision, so the Respondent should have adduced any evidence it sought to rely on in response.)

7.Apart from these points, the Appellant also now alleges that the Respondent’s account and notes of the interviews conducted with (1) Mr Sidney MAK Kim Leung and (2) Mr KAN Ho Kai are incomplete and inaccurate. These complaints only surfaced in the Appellant’s reply evidence, as the Appellant did not have the Respondent’s notes previously. The Appellant complains that it had asked for them but was not provided with them until they were disclosed in the Respondent’s evidence. The Respondent says that the Appellant’s request was overtaken by events, the proceedings having been commenced in the meantime. Leaving aside whether the notes should have been disclosed earlier, the fact is that the Appellant was not in a position to make its complaints about their inaccuracy until its reply evidence, and the Respondent has therefore not had the opportunity to respond to such complaints. Mr Yu says that no factual finding needs to be made about who said what at the interview. Yet at the same time, he is not withdrawing the allegations made by the Appellant about what was said. As a matter of fairness, the Respondents should have the opportunity to respond.

8.I bear in mind that the loss of the hearing date would be prejudicial to the Appellant, whose status, despite the interim-interim stay granted on the previous occasion, remains uncertain vis-à-vis third parties. However, the position is simply that there are new grounds and evidence from the Appellant, and the Respondent should have a proper opportunity of putting before the court the evidence it relies on to answer the Appellant’s case. After all, RHC O.1A r.2(2) provides that the primary aim in exercising the court’s powers is to secure the just resolution of disputes in accordance with the substantive rights of the parties. Furthermore, it has been just two weeks since the Respondents have had the Appellant’s reply evidence and the ANOM, and the Respondents seek only an additional week to finalise its evidence. The Appellant says that it expects pressure for recovery of payments in the construction industry towards the year end, particularly the Chinese New Year end, which is still some months away. It ought to be possible to have the adjourned hearing before then. Mr Yuen points out that the Appellant’s financial position has not changed much between March and May 2025, and that its balance sheet still shows a substantial amount of net assets. There is also no evidence as to the extent to which alternative sources of funding are available to support the Appellant in the meantime. Whilst it is for the Respondents to show exceptional circumstances justifying the moving of the milestone date rather than for the Appellant to demonstrate prejudice, I consider that the unusual circumstances of the present case are exceptional and that the prejudice caused by the moving of the milestone date does not outweigh taking such a course.

9.I will hear from counsel regarding dates before making directions.

Mr Benjamin Yu SC leading Mr Thomas Wong, instructed by DLA Piper Hong Kong, for the Appellant

Mr Rimsky Yuen SC leading Mr Anthony Chan SC and Mr Justin Lam, instructed by Department of Justice, for the 1^st and 2^nd Respondents