Chui Marjorie Che Ying, Chui Toni Yim v. Appeal Tribunal (Buildings), Building Authority
Read the full judgment text of FAMV 104/2025 on BabelCite. This Court of Final Appeal judgment was delivered on 6 November 2025 before Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Lam PJ.
Administrative and constitutional law – Buildings Ordinance (Cap 123) – statutory interpretation – s.28(3) – drain repair order served on unit owner – construction of 'building' and 'owner' – whether 'building' includes 'part of a building' so as to identify the owner of the unit exclusively served by the defective drain – applicants own Unit 11B with defective drain passing through floor slab and affixed to ceiling of downstairs Unit 10B – Court of Appeal rejected applicants' construction that owner was owner of unit where defective section physically located, and rejected fall-back that owner meant all co-owners of entire building; held that 'building' in s.28(3) includes the part of a building served by the defective drain, so the owner is the owner of that part – unworkability argument based on need to access neighbouring unit answered by s.22 BO mechanism for entry (by consent or magistrate's warrant) and by DMC quasi-easement and common law right of access – whether proposed grounds raise a reasonably arguable basis for challenging the Court of Appeal's construction – leave refused – costs to respondents.
Legal issues: Leave threshold — construction of s.28(3) Buildings Ordinance on who must be served a drain repair order
Outcome: Application for leave to appeal dismissed with costs.
Cites 2 cases
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FAMV No. 104 of 2025 [2025] HKCFA21 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO. 104 OF 2025 (CIVIL) (ON APPLICATION FOR LEAVE TO APPEAL FROM CACV NO. 291 OF 2022) ________________________
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________________________ DETERMINATION ________________________ Mr Justice Ribeiro PJ: 1.This is the Determination of the Appeal Committee. At the hearing, we dismissed this application for leave to appeal with costs. We now provide our reasons. 2.The applicants are the owners of Unit 11B in the building concerned. Pursuant to s 28(3) of the Buildings Ordinance (“BO”)[1] the Building Authority (“BA”) served on them an order requiring them to repair a defective drain which exclusively served their unit. The applicants objected, arguing that such repairs were the responsibility of the owners of Unit 10B downstairs because, due to the building’s design, the drain passed through the floor slab and the defective section was affixed to the downstairs flat’s ceiling (behind a false ceiling) as it exited the building to join the main drainage pipe outside. 3.The issue as to whether the order was correctly served on the applicants turns on the true construction of s 28(3) which materially provides as follows:
4.Section 28(3) must be read together with the BO’s definition of “building” in s 2 which reads: ‘building’ includes the whole, or any part, of any ... building ... 5.The applicants advanced two constructions:
6.The BA had argued that “owner” includes all the co-owners, but that the BA has a discretion to select the particular owner to be served – in this case, the unit owner who had the exclusive use and benefit of the defective drain, as per the policy indicated in their published Manual. 7.The Court of Appeal[3] rejected all the above-mentioned constructions. It held that since “building” includes part of a building, in the present context, the owner in question is the owner of the unit which is exclusively served by the defective drain, ie, the applicants, this not being a matter of discretion but of construction. 8.In our view, the Court of Appeal’s construction is plainly correct and the competing views are not reasonably arguable. The applicants’ version finds no support in any of the statutory language properly construed. Nor does the BA’s discretionary approach. With respect, Coleman J’s construction is highly impracticable, requiring the BA to serve every owner in the building, dragging them all in when they may not be concerned in the slightest with a purely localised problem, such as with the defective drain affecting only Units 11B and 10B. Such a construction serves no discernible statutory purpose. 9.The starting-point on construction, both textually and purposively, is that in the BO, “building” includes “the whole, or any part, of any ... building”. Thus, if the context so requires, a reference to a “building” should be understood to be a reference to a relevant “part of a building”. So when s 28(3) refers to “the drains ... of any building” that phrase can, and in circumstances involving a localised problem, should be understood to refer to the drains serving that particular part of a building, as the Court of Appeal pointed out.[4] 10.This enables the relevant “owner” to be identified. When s 28(3) says that the BA may serve the order on “the owner of such building” it means the owner of the part of the building served by the defective drain. 11.On this construction, the s 28(3) concepts of “building”, “defective drains” and “owner” cohere to address the practical problem of the defective drains, allocating responsibility for repairs on the relevant owner. The drain in this case exclusively serves Unit 11B. It is a drain “of” or serving or appurtenant to that unit. The applicants are its owners. Thus, s 28(3) empowered the BA to require them to effect the repairs. 12.The applicants contested the aforesaid construction arguing that s 28(3) does not cater for the situation where repairs require access to some other unit, such as the flat downstairs. Because, so they contended, the BO provides no mechanism to enable them to gain such access, the Court of Appeal’s construction is unworkable or “absurd” and should not be adopted. They prayed in aid a similar view espoused by Coleman J.[5] 13.That argument rests on the false premise that the BO provides no means of obtaining such access. BO s 22 provides the means, materially stating as follows:
14.Thus, under s 22, the magistrate is empowered to issue a warrant where there are reasonable grounds for suspecting “that the drains ... of the premises ... are in a defective or insanitary condition” mirroring the words of s 28(3). Such a warrant may also be issued where “a notice or order served under this Ordinance has not been complied with”, which would apply to a s 28(3) order. The power to gain entry under s 22 applies to “any premises or ... any land” obviously encompassing premises whose owners are not themselves subject to repair orders. As everyone acknowledges, in cases like the present, the affected “other owner” (who is likely to have made the complaint to the Buildings Department) might be expected to welcome execution of the repair order at the expense of the owner served and so readily give consent to entry, as s 22 envisages. The BA may thus gain entry by their permission or, if such entry is refused, pursuant to a warrant issued under s 22 after due notice is given. 15.Although Au JA did not spell out the way in which s 22 answers the applicants’ unworkability argument, he did indeed refer to that section as providing an option to ensure effective enforcement of the repair order.[6] 16.Moreover, quite apart from s 22 and the BO, further enforcement options may exist under commonly found provisions of a DMC which provide for such access. This applies in the present case where, as the Building Appeal Tribunal noted, under Clause 3.3.1 of the DMC, the owner of unit 10B granted a quasi-easement to the applicants to allow the pipe to pass through unit 10B.[7] At common law, grant of an easement impliedly provides for a right of access to carry out any necessary repairs.[8] That analysis applies to quasi-easements in the context of a multi-storey building. 17.Thus, the applicants’ submission that the Court of Appeal’s interpretation is unworkable or “absurd” because of lack of any means of access to the neighbouring unit is untenable. 18.We accordingly decided that no reasonably arguable basis exists for challenging the Court of Appeal’s decision and refused leave.
Mr Anson Wong Yu Yat, Mr Jason Kung and Mr Jonathan Ip, instructed by Fred Kan & Co., for the Applicants Mr Ernest Ng, instructed by the Department of Justice, for the 2nd Respondent The 1st Respondent was not represented and did not appear |