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HCAL 1227/2026
[2026] HKCFI 5063
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1227 OF 2026
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BETWEEN
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BOLITHO OLIVER ROBERT MORGAN |
Applicant |
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and
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APPEAL TRIBUNAL (BUILDINGS) |
Putative Respondent |
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and
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BUILDING AUTHORITY |
1st Putative Interested Party |
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FARLOW MARGARET ANNE |
2nd Putative Interested Party |
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| Before: |
Deputy High Court Judge Gary CC Lam in Court
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| Date of Hearing: |
28 August 2026 |
| Date of Judgment: |
11 September 2026 |
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JUDGMENT
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I. INTRODUCTION
1.This is the rolled-up hearing of the amended notice of
application for leave to apply for judicial review (the “Form 86”) by the Applicant dated 7 July
2026.
2.The Applicant is a co-owner of a house in The Redhill
Peninsula (the “House”), the other co-owner being his wife, the 2nd Putative Interested Party
herein (collectively, the “Owners”). The House is along the seafront of The Redhill
Peninsula.
3.The subject decision in the Form 86 is the decision made by
the Putative Respondent (the “BAT”) on 11 May 2026 in Case No: 335-2023 (the “BAT’s
Decision”). By the BAT’s Decision, the BAT dismissed the Applicant’s appeal commenced by his
notice of appeal dated 20 December 2023 supplemented on 27 December 2023 (the “Notice of Appeal”) in
relation to a building order issued by the 1st Putative Interested Party (the “BA”) on 6
December 2023 (the “Building Order”) pursuant to section 24(1) of the Buildings Ordinance (Cap. 123) (the
“Buildings Ordinance”). By the Building Order, the Owners were ordered to (1) demolish various
items of building works in or under the House and (2) reinstate the parts of the House affected by the building
works, on the ground that the building works were unauthorised building works (the “UBWs”). I shall
enumerate the UBWs at an appropriate juncture below.
II. BACKGROUND
4.On 9 September 2023, after a typhoon hit Hong Kong, a severe
landslide occurred in the Redhill Peninsula, exposing potential UBWs and breach of the Government leases that
had existed in various houses in the Redhill Peninsula. As a result, the Buildings Department (the
“BD”) and the Lands Department jointly commenced a special large-scale operation (the “Special
LSO”) against the UBWs. In a Government Press Release dated 22 September 2023, it was stated
that:-
“… any unauthorised basements, damage to retaining walls or construction of unauthorised
storeys in [the houses along the seafront in The Redhill Peninsula] will affect the stability of the
slope and pose high risks to the structural safety of buildings…
… in accordance with the ‘risk-based’ enforcement approach, the two departments will focus and
accord priority to 85 houses along the seafront…kick-start inspection of suspected non-compliant houses on
the seafront by phases, with a view to rigorously combating UBWs”. (emphasis added)
5.The House was among the 85 houses.
6.Around the same time, the BD published a paper entitled
“Special Large-Scale Operation against Unauthorised Building Works at the Redhill Peninsula, 18 Pak Pat Shan
Road, Tai Tam” (the “2023 Special LSO Paper”), providing:-
“The Special Large-scale Operation against UBWs with High Safety Risk
3. The construction of UBW on the top of a natural slope not only would affect the stability of
the slope but also the building structure sitting on the slope. The addition of a structure at the lowest
floor of the house at the Redhill Peninsula would add weight to the retaining wall and the slope, affecting
the overall stability of the retaining wall and the slope, and the structural safety of the house behind the
retaining wall. The construction of a basement adjacent to the retaining wall would weaken the bearing
capacity of the footing/raft foundation of the house behind affecting the structural safety of the house.
These UBW and UBS [that it, unauthorised building structures] constitute a high safety risk to the natural
slope as well as the structure of the houses, warranting a special large-scale operation (Special LSO) by BD
against the UBW and UBS constructed in the houses sitting on the natural slopes along the coast.
4. The Special LSO will cover 89 houses of the Redhill Peninsula sitting on the natural slopes
along the coast.
5. Under the Special LSO, removal orders under section 24 of the Buildings Ordinance (BO)
will be issued to require the building owners to remove unauthorised roof top structure/flat roof
structure/yard structure (TMB) and UBS, and to appoint an Authorized Person, a Registered Structural
Engineer and a Registered Geotechnical Engineer to submit a remedial proposal for BD’s approval before
commencement of remedial/reinstatement works. In the remedial proposal, the AP/RSE will also be required to
assess and remove any structures on the government slope that are found structurally connected to the
structure of the houses.” (emphasis added)
7.At the end of the 2023 Special LSO Paper, there was a “List
of Actionable UBWs” (the “Actionable List”), listing out:-
(1) 7 items under heading 1: “UBWs on rooftops, flat roofs, gardens or yards”;
(2) 3 items under heading 2: “UBWs constituting imminent danger”; and
(3) 3 items under heading 3: “Alteration to building façade without significant
impact”.
8.The House was among the 89 houses as mentioned in §4.
9.The 2023 Special LSO Paper was issued pursuant to §2(g) of
the “Revised Enforcement Policy against Unauthorised Building Works” (the “2011 Revised Enforcement
Policy”), which provides that:-
“2. Enforcement against UBWs is sustained, and the BD adopts a wider scope for action so as to
remove UBWs in a more comprehensive and systematic manner. The coverage of actionable UBWs is extended to
include UBWs on rooftops and podiums as well as those in yards and lanes of buildings, irrespective of
their risk to public safety or whether they are newly constructed. Under the new enforcement
policy, BD will issue statutory orders to the owners concerned requiring removal of the following
actionable items and register the orders against the relevant property titles:
(g) a specific type of UBWs, or items identified in buildings or groups of buildings, targeted
for large-scale operations…”
10.Having completed the inspection of the houses including
the House, on 6 December 2023, the BA issued the Building Order under section 24(1) of the Buildings
Ordinance. Section 24(1) provides:-
“Order for demolition, removal, or alteration of building, building works (other than minor
works commenced under simplified requirements) or street works
(1) Where any building has been erected, or where any building works or street works have been
or are being carried out in contravention of any of the provisions of this Ordinance the Building Authority
may by order in writing require—
(a) the demolition of the building, building works, or street works; or
(c) such alteration of the building, building works, or street works as may be necessary to
cause the same to comply with the provisions of this Ordinance, or otherwise to put an end to the
contraventions thereof,
and in every case specify the time within which the demolition, alteration or work required by
such order shall be commenced and the time within which the same shall be completed.”
11.It is also an appropriate juncture to set out the terms of
the Building Order:-
“In exercise of the powers vested in me under section 24(1) of the Buildings Ordinance, I
hereby order you to:-
(a) demolish the building works described under items (i) to (vi) and (viii) to (x) and (xii)
to (xiii) below; and
(b) reinstate the parts of the building so affected by the building works under items (i) to
(xiii) below in accordance with the plans approved by the Building Authority.
(i) A structure erected on and over the flat roof at Entrance Level (Level 4);
(ii) A projecting structure attached to the external wall at Entrance Level (Level 4);
(iii) A 2-storey structure erected at Living Room Level (Level 3) and Bedroom Level (Level
2);
(iv) A structure attached to the external wall at Living Room Level (Level 3);
(v) A structure erected on and over the flat roof at Bedroom Level (Level 2);
(vi) A projecting structure attached to the external wall at Living Room Level (Level 3);
(vii) Removal of portion of structural wall at Master Bedroom Level (Level 1);
(viii) A structure erected at unexcavated area at Master Bedroom Level (Level 1);
(ix) A structure erected at Garden;
(x) A structure erected under the Garden;
(xi) Removal of portion of retaining wall;
(xii) Supporting structures for building services installation erected on and over the
roof;
and
(xiii) A supporting structure for building services installation erected at Roof level on
another structure below as described under item (i).”
For convenience, I shall refer to those items ordered to be demolished in §(a) as the “Subject Items”.
12.It is common ground that these items of works are UBWs,
that is, they were carried out or added without the BA’s approval and consent under section 14 of the Buildings
Ordinance, which provides that:-
“Approval and consent required for commencement of building works, etc.
(1) Save as otherwise provided, no person shall commence or carry out any building works or
street works without having first obtained from the Building Authority—
(a) his approval in writing of documents submitted to him in accordance with the
regulations;
and
(b) his consent in writing for the commencement of the building works or street works shown
in
the approved plan.
(2) Subject to section 28B(4), neither the approval of any plans nor the consent to the
commencement of any building works or street works shall be deemed—
…
(c) to grant any exemption from or to permit any contravention of any of the provisions of
this
Ordinance or of any other enactment.”
13.It is also common ground that no exemption can be granted
for section 14, given that section 42 of the Buildings Ordinance provides:-
“Building Authority’s powers of exemption
(1) Where in the opinion of the Building Authority special circumstances render it desirable he
may, on receipt of an application therefor and upon payment of the prescribed fee, permit by notice in
writing modifications of the provision of this Ordinance.
…
(5) This section shall not apply to section 14.”
14.Therefore, the relationship between sections 14 and 24 of
the Buildings Ordinance has been described by Coleman J in Lau Chi Wang v Appeal Tribunal (Buildings) [2024] HKCFI 2046 at §56 as follows:-
“Section 24 is what gives some teeth to section 14. Section 14 is enforced through section 24
because imposing an order under the latter is the consequence of non-compliance with the former. Asking the
BA [that is, the Building Authority] to refrain from taking enforcement action under section 24 is to
suspend the consequence of non-compliance with section 14. Why should section 14 be complied with when
non-compliance has no consequence?”
III. APPEAL TO THE BAT
15.In December 2023, the Applicant commenced an appeal in the
BAT by the Notice of Appeal. During the hearing of the appeal, the Applicant’s expert witness, Mr Hui
(“Mr Hui”), a registered structural engineer and former Chief Structural Engineer of the BD, gave
evidence.
(1) After conducting multiple visual inspections of the Subject Items on site, he came to the view
that the Subject Items were structurally safe.
(2) He sketched possible alternative schemes to dispose of the Subject Items by way of alteration
instead of demolition, including partial backfilling, steel truss arrangements and other partial retention
solutions.
(3) He accepted that UBWs could be said to be an unknown factor.
16.For the BA, Mr Kam and Mr Luk were the experts, giving
evidence that:-
(1) Some of the UBWs in The Redhill Peninsula were located at the crest of slope and/or retaining
wall. As the construction details, drainage provisions and loading condition of the UBWs were unknown,
their effects on the retaining wall and the slope are unknown. This poses safety risk to the slope
stability.
(2) Building works carried out without first obtaining the BA’s approval and consent for the
commencement of such building works would have unknown effects on the stability and safety of the affected
premises and neighbourhood.
(3) The structural safety of an UBW was not reflected from the length of its existence. An
UBW would not necessarily be designed with an adequate margin of safety against instability, constructed
with materials that had been tested, constructed with adequate quality control and supervision as required
under the Buildings Ordinance. Thus, the structural safety of an UBW would remain unknown and
questionable.
17.Further, for the BA, BD’s Chief Building Surveyor Mr Ko
and BD’s Building Surveyor Ms Lo gave evidence to the effect that:-
(1) When issuing a building order (including the Building Order), the BD would not and did not
consider the safety risk mentioned in §3 of the 2023 Special LSO Paper and whether an UBW would pose any
safety risk.
(2) Once a building structure deviates from an approved building plan and falls within the
Actionable List, the BD would issue a building order.
(3) For the Building Order, issued by Ms Lo, Ms Lo did so upon inspection where she found works
and structures deviating from the approved building plans and falling within the list of actionable
items. There was no question about exercising discretion (冇你所講話要行使酌情權呢樣嘢嘅).
(4) The only reason the BA did not issue an order requiring alteration (instead of demolition) was
that, according to their understanding, section 24(1)(c) does not empower the BA to grant any retrospective
approval to UBWs.
18.The central questions for the BAT to decide were, as set
out in §30 of the BAT’s Decision:-
(1) “Whether, in any event, the Tribunal should exercise its own discretion afresh under section
24(1) to vary or set aside the [Building] Order”, in particular, “instead of ordering demolition and
reinstatement, the BA ought to have considered, and the [BAT]…ought to order, ‘alteration’ of some or all of
the [UBWs] under section 24(1)(c) of the Buildings Ordinance ”: see §79 of the BAT’s Decision; and
(2) “Whether the BA’s decision to issue the [Building] Order was vitiated by public law error,
including unlawful departure from enforcement policies, breach of legitimate expectation, improper purposes,
ultra vires requirements and disproportionate interference with Basic Law property rights”: see §30 of the
BAT’s Decision.
19.For Question (1), the Tribunal’s answer was in the
negative, relying on Filipino Club v Building Appeal Tribunal and Another [1995] 3 HKC 356 (see
§81 of the BAT’s Decision).
20.For Question (2), the Tribunal’s answer was also in the
negative.
21.Therefore, the Tribunal dismissed the appeal.
IV. FIRST GROUND – ERROR OF LAW AND/OR FETTERING OF DISCRETION
22.The first ground of judicial review (“Ground (1)”)
is fettering of the BA’s (and BAT’s) discretion under section 24 of the Buildings Ordinance. For this
ground, submissions of Mr Ernest Ng, leading Mr Raphael Leung, counsel for the Applicant, can be summarised in
the following propositions:-
(1) “May” in section 24(1) of the Buildings Ordinance confers discretion on the BA to decide
whether to require the owners to demolish or remove an UBW. I shall refer to this proposition as
“Proposition (1)”.
(2) The discretion should be exercised with reference to the purpose of the Buildings Ordinance –
among others, to protect the public from unsafe works. I shall refer to this proposition as
“Proposition (2)”.
(3) The BA (and the BAT deciding the matter de novo and exercising the power de
novo) took an absolute and blanket position – to order demolition of UBWs whenever they have not
been approved, without considering whether alteration would be an alternative with regard to the safety of
the UBWs. I shall refer to this proposition as “Proposition (3)”.
(4) Such absolute and blanket position means an impermissible fettering of the discretion. I
shall refer to this proposition as “Proposition (4)”.
23.It is convenient to deal with Proposition (2) first, that
is, the purpose of the Buildings Ordinance, because the purpose of the Buildings Ordinance may inform the
discretion conferred upon the BA, if any.
A. Proposition (2) - purpose
24.For proposition (2), that the discretion has to be
exercised with reference to the purpose of the Buildings Ordinance is not in dispute. As to the purpose of
the Buildings Ordinance:-
(1) The long title of the Buildings Ordinance reads:-
“To provide for the planning, design and construction of buildings and associated works; to
make provision for the rendering safe of dangerous buildings and land; to make provision for
regular
inspections of buildings and the associated repairs to prevent the buildings from becoming
unsafe;
and to make provision for matters connected therewith.” (emphasis added).
(2) Under the Buildings Ordinance, the BA has the duty, among others, to protect the public from
unsafe building works: see Ronald Wilson v Appeal Tribunal (Buildings) [2013] 5 HKLRD 158 at §66.
(3) A related purpose, or the BA’s duty, I can ascertain from the phrase “prevent the buildings
from becoming unsafe” in the long title, is to protect the public from risks of dangers imposed by
buildings. This is preventive in nature, rather than remedial in the sense that something would be
done only when the buildings become dangerous. This is preventive in the sense that before there would
be any danger, the BA has a duty to take some measures to protect the public from such risks.
(4) Another purpose is to render safe dangerous buildings and lands.
B. Proposition (1) - discretion
25.Proposition (1) is also not in dispute: see
Quebostock Limited v The Building Authority and Another (Court of Appeal) [1986] HKLR 467
at 476G per Silke JA, followed by Technic Investment Co Ltd v Appeal Tribunal (Buildings) [2012] 3 HKLRD
245 at §27 per Johnson Lam J (as he then was) and Ronald Wilson v Appeal Tribunal (Buildings),
supra at §28 per Anthony Chan J (as he then was).
26.The question is what the limit of the discretion is.
27.The legal position has been understood to be that under
section 24, the BA has no power to give retrospective approval and consent to works already commenced and
carried out. Mr Martin Ho, counsel for the BA, therefore, submits that any discretion under section 24 can
in no way include a discretion to give such retrospective approval and consent, and therefore, for works
completed without the BA’s approval and consent in the first place, the discretion only allows the BA to issue
an order of demolition (or not at all), and the discretion confers no power on the BA to issue any order of
alteration to legalise such works, because an order of alteration would not address the lack of approval and
commencement of the works even upon alteration.
28.For this legal position, the case to start with is
Yeung Pui Yee v Building Authority [1989] 1 HKC 356, a judgment given by Godfrey J (as he then
was). The background and the issue of the case have been succinctly summarised in the headnote of the case
report:-
“The applicant was asked to obtain approval from the Building Authority for certain alterations
and additions to an existing building in Austin Road, being one for the original construction of which
approval under s 14 of the Buildings Ordinance (Cap 123) was not originally obtained. Under a practice note
issued by the Building Authority in April 1988, it was stated that the Building Authority had no power to
give retrospective approval or consent in respect of building works which had already been commenced,
carried out or completed. The practice note was headed ‘Unauthorized Alterations and Additions Buildings
Ordinance section 14’. The question raised on application was whether the Building Authority had set out the
law correctly in the practice note. The applicant argued that the practice note meant that if the
proposal for alterations was concerned with a structure which had been erected in contravention of s
14(1), the Building Authority would not entertain the proposal.”
29.Starting at 358G, his Lordship expressed his view:-
“I have read and re-read the April 1988 practice note. It seems to me that on no proper
construction can it bear the meaning for which the applicant contends…As it seems to me, the April 1988
practice note is concerned only with the problem to which it in terms relates. There is no such
implication or inference as the applicant suggests is to be drawn from it. It has the effect of
reminding authorized persons that no building works can be effected without first obtaining such approval
and consent. Despite the heading, it seems to me irrelevant whether the building works are new building
works or works of alteration and addition. To all such building works, s 14(1) of the Buildings Ordinance
applies.
The provisions of s 42 of the Buildings Ordinance…are not applicable to applications to
dispense with the requirements of s 14 and authorized persons are minded of this also.
When the Building Authority states, as it does:
‘It is therefore abundantly clear that I have no powers to give retrospective approval
or
consent in respect of building works which have already been commenced, carried out or
completed’
the Building Authority states the law correctly. It states it correctly both in respect of new
building works and in respect of unauthorized alterations and additions to existing building works, whether
those existing building works were themselves originally authorized under s 14 or not. When the Building
Authority gives the following guidance to authorized persons:
‘In the circumstances, applications for approval of any plan or consent for the
commencement of
building works for works which have been commenced, carried out or completed will not therefore be
processed
but would be returned to you with a note referring to the limitations of my powers as described herein.’
it does no more than state what the consequences will be of a failure by the authorized person
to take any notice of the Ordinance or of the guidance about it which the April 1988 practice note is
intended to give.” (emphasis added)
30.The next case is Filipino Club v Building Appeal
Tribunal [1995] 3 HKC 35. It was a judicial review on grounds similar to Ground (1) here. In
that case, the applicant constructed and completed a car-parking platform onto its premises without first
obtaining the BA’s approval under section 14. As a result, the BA issued a demolition order under section
24(1) of the Buildings Ordinance requiring removal of the illegal structure and remedial works under the
supervision of an authorized person. The authorized person, instead, submitted plans for altering and
normalising the illegal structure under section 24(1)(c) of the Buildings Ordinance. The BA refused to
process the application on the ground that it did not have any power to give retrospective approval in respect
of building works that had already been completed. The applicant appealed to the BAT, which dismissed the
appeal.
31.At 358C-E, Jerome Chan J summarised the applicant’s
argument in relation to section 16 of the Buildings Ordinance as follows:-
“It is submitted by the applicant that the decisions of the Building Authority and the Appeal
Tribunal were wrong in that under s 24(1)(c) of the Ordinance, the Building Authority has power to process
and approve plans submitted for the purpose of obtaining retrospectively the approval and consent that ought
to have been obtained prior to the construction of the illegal structure. It is the applicant’s contention
that the Building Authority can only refuse to approve submitted plans on the grounds set out in s 16 of the
Ordinance and no others. It alleges that the Building Authority had erroneously taken into account
consideration a matter that is not within the ambit of s 16, namely, that the plans related to existing
illegal structures. By so doing, it is submitted, the Building Authority had acted ultra views the
provisions of s 16.”
32.In rejecting the applicant’s argument in relation to
section 16, the learned judge reasoned as follows (358H-360D):-
“It is accepted that the Building Authority can only refuse to give its approval to plans upon
grounds set out in s 16 of the Ordinance and no others…The basis for the [Building Authority’s] decision was
that the works, the subject matters of the plans submitted, had already been completed. It was insignificant
for the decision whether the completed structures were legal or illegal. The logic of the decision is
that one cannot seek approval to construct structures that had already been constructed. The application
for approval should and must be made prior to the construction of the structure in question. It would be
wholly illogical and superfluous for one to seek consent to the doing of such act after it had been
done.
Pursuant to s 16(1)(c), the Building Authority is entitled to refuse approval to plans if it
‘has not received application for their approval in the specified form or any such application does not
contain the particulars required therein’…As the statutory scheme is for approval and consent to be obtained
prior to the commencement of building works (making it an offence for a failure to obtain such consent prior
to the commencement of works); there is no provision for applying for retrospective consent. In the
premises, the Building Authority is entitled under s 16(1)(a) and (c) to reject an application for approval
to works already commenced or structures completed prior to the making of the application.
Furthermore, the Building Authority is entitled to refuse to give consent to works the carrying
out of which would contravene the provisions of the Ordinance or other enactment. If it is alleged that
the plans submitted in respect of the illegal structure were for the approval to commence works to
render them in compliance with the requirements of the Ordinance so that the Building Authority could be
persuaded to withdraw the demolition order, such an application would come within s 16(1)(d). Until the
demolition order is withdrawn, the applicant is still obliged to demolish the illegal structure. An
application for approval to commence work for the alteration, and not demolition, of a structure ordered to
be demolished under a demolition order is an application for carrying out work that would contravene the
said order, and thus a contravention of the provisions of the Ordinance. Any application for approval for
works to remedy a structure that is the subject matter of an effective demolition order can be validly
rejected by the Building Authority under s 16(1)(d).
…
The applicant had not pursued its complaint relating to the alleged unlawfulness of the said
Practice Note at the hearing. I am nevertheless satisfied that there could be no merits in such
complaint. The decision of Godfrey J, as he then was, in Yeung Pui Yee v The Building Authority
[1989] 1 HKC 356, has determined this issue.” (emphasis added)
33.The applicant there also raised an argument in relation to
section 24(1)(c), which the learned judge also dismissed (360D-I):-
“In the written submission, though not in the oral presentation during the hearing, counsel for
the applicant appeared to suggest that the Building Authority was wrong not to have considered its
‘discretion’ under s 24 properly. It was suggested the Building Authority should have exercised its power
under s 24(1)(c) rather than under s 24(1)(a) in respect of the contravening structure in question.
Section 24(1)(a) empowers the Building Authority to require the demolition of the contravening
structure, whereas s 24(1)(c) empowers it to require alteration of the same to comply with the
provisions of the Ordinance or put an end to the contravention.
It is a misconception to suggest that the Building Authority could or should exercise its
discretion under s 24(1)(c) in respect of a structure that contravened the Ordinance because of a lack of
prior consent to the erection of the same. The contravention in question cannot be redressed or remedied
by any subsequent order for ‘alteration’ of the structure. The contravention in question was not one
that involved the physical framework of the structure; it was one of lack of consent for its
erection. It would have been otherwise if the contravention referred to by the Building Authority
was directed towards the safety or design of the structure in question, whether the same was erected with or
without consent. I am clearly of the view that s 24(1)(c) could not have been available to the Building
Authority to remedy a lack of prior consent even if it wished so to do.” (emphasis added)
34.Against the above cases, Mr Ng gives an extreme
hypothetical example, which he refers to as the “Gloucester Tower” conundrum, in an attempt to show the
absurdity caused by the above cases. This “conundrum” is set out in §44.4(4) of his written submissions:-
“Assuming the complete demolition of an UBW situated in a renowned commercial premises (e.g.
Gloucester Tower) would inevitably render the entire Gloucester Tower structurally unsafe (thus liable to be
demolished entirely), whereas a minor alteration of the said UBW would ensure the structural safety of both
the modified UBW itself and Gloucester Tower – BAT’s blanket approach necessarily means that BO left BA
(thus BAT) with no choice but to insist on the demolition of the UBW (thus leading to the inevitable tearing
down of Gloucester Tower) – this was the antithesis of what Silke JA envisaged in Quebostock”.
35.With respect, this so-called Gloucester Tower conundrum is
a reductio ad absurdum, and at the same time, a false dichotomy. In my view:-
(1) It is a reductio ad absurdum because it seems to me it is unreal that an addition of a
structure to a tower would render the entire tower structurally unsafe. It is unreal that if the
structure would render the entire tower structurally unsafe, in the normal course of things, that structure
must be conspicuously large and would not escape the authorities, media and public attention, as well as the
attention of the people in the trade.
(2) Even if there could be such a case, it would be a false dichotomy, unrealistically leaving
only a choice between demolition of the entire building and alteration of the UBW or the building.
There can be many other available choices: for example:-
(a) Demolition of the added structure under a demolition order and reinforcement works to the
building under an alteration order; and
(b) Demolition of the added structure under a demolition order and demolition of part of the
approved building under a demolition and alteration order.
(3) In other words, this Gloucester Tower conundrum is unreal. Further, it does not
necessarily lead to a dichotomy. Thus it would not be absurd as would appear by the false
dichotomy.
36.In any event, absurdity is not to be equated with
hardship. In my view, there is no absurdity when the owner takes all the trouble to commence the works and
carry them to completion but still ignores the requirement of the BA – he asks for and deserves the hardship
caused by not complying with, or breaching, the law. I see no reason why simply because non-compliance
with the law may result in hardship (rather than absurdity), the law would have to be strained to aid those who
has failed to comply with and breached the law.
37.Lack of power to give retrospective approval and
commencement is entirely consistent with the purpose of the Buildings Ordinance and the BA’s duty to “prevent
the buildings from becoming unsafe” and to protect the public from risks of dangers imposed by buildings the
structures of which are unknown due to lack of plans filed with the BA. With such unknowns, risks of
danger clearly exist. To protect the public from risks of danger, the legislative decision is to require
demolition of the illegal works altogether. There is nothing wrong in such legislative decision.
38.Insofar as it may be argued that different considerations
would arise if the owner supplies subsequently the plan and the records of the works for a retrospective
approval and consent and/or alteration order, because the structures would become known. However, in my
view, retrospective approval and consent would render the legislative scheme ineffective because this would
encourage owners not to apply for approval and consent and would apply for the same retrospectively only when
there is risk of enforcement. This would mean that the owner can play the game of “catch-me-if-you-can”,
while it is not right to expect the BA to employ staff the size of the Hong Kong Police Force to search for and
test every control illegal works: see Ko Siu Luen v Appeal Tribunal (Buildings) [2012] 1 HKLRD 149 at §33
per Au J. Viewed this way, there is also nothing wrong in the legislative decision to require demolition
of such illegal structures.
39.Having considered the above, I have no hesitation in
agreeing with, and re-affirming, the long-understood legal position that under section 24, the BA (and thus also
the BAT) has no power to give retrospective approval and consent to works already commenced and carried
out. It follows that any discretion under section 24 can in no way confer power upon the BA to give such
retrospective approval and consent, and therefore, for works completed without the BA’s approval and consent in
the first place, the BA (and thus also the BAT) can only issue an order of demolition, but not any order of
alteration, because the latter would not address the lack of approval and commencement of the works even upon
alteration.
40.In coming to this conclusion, I have not overlooked the
remarks made by Silke JA in Quebostock Limited v The Building Authority and Another,
supra, at 476:-
“… it would seem quite wrong if s. 14 were contravened by the failure to either apply for an
initial approval of plans or for the secondary approval to commence works, then the result could be that a
fully erected building which has escaped the notice of the Building Authority could be ordered by him to be
totally demolished without the provision of the short and inexpensive appeal to the Appeals Tribunal under
s. 43…”
41.However, on these remarks, in Technic Investment Co Ltd
v Appeal Tribunal (Buildings), supra at §24, Johnson Lam J had the following to say:-
“These remarks, though entitled to respect as coming from an eminent judge in this
jurisdiction, were not part of the ratio. The issue before the Court of Appeal in Quebostock Ltd v
Building Authority was whether the Building Authority had discretion not to order demolition as
opposed to how the discretion should be exercised. It would be wrong to read the case as establishing a
legal proposition that it would not be a proper exercise of the discretion to order the demolition of a
fully erected structure which in all other respects (apart from the failure to build in accordance with
approved plans) comply with our building laws and regulations.” (emphasis added)
42.In Ronald Wilson v Appeal Tribunal (Buildings),
supra, Anthony Chan J, at §63, adopted Johnson Lam J’s opinion. I have no reason to depart from
these two subsequent, much more recent cases, when Silke JA’s remark made 20 years ago clearly was an
obiter not binding on me. I go one step further: with the greatest respect, the example given in
the remarks of Silke JA is also an example of reductio ad absurdum, exaggerating the problem to the
extreme which in my view would and could hardly happen in real life. I cannot imagine how such a large
building could escape the authorities’ and the media’s attention, and/or the attention of the people in the
trade (including developers, architects, surveyors and construction workers). I also cannot imagine that
there would be so many people in the trade who would be willing to carry the construction to the completion
blatantly contrary to the law. This example, in my respectful view, is theoretical than real. The
Buildings Ordinance (as do other laws) address problems in the reality rather than in the imaginary.
43.In any event, in my view, there would be no absurdity in
requiring demolition of a building, howsoever big, admirable/or and expensive, which has been erected illegally
in the first place.
44.There are also other limitations on the discretion. In
Ronald Wilson v Appeal Tribunal (Buildings), supra, at §§64-65 Anthony Chan J identified the
following limitations, from which again I have no reason to depart:-
(1) One would expect the BA to take enforcement action against the UBWs, relying on Link
Harvest Ltd and Another v Wayhang Development Ltd [2001] 2 HKC 652 at 680F-I per Recorder Edward
Chan SC (although that case is a conveyancing case where the title to a property was the subject matter, I
take the view that the BA is not only expected, but is in fact charged with duty, to take enforcement action
against the UBWs, though it is another matter that given the limited resources, how the BA would prioritise
the enforcement actions); and
(2) There can be no legitimate expectation that an amnesty on enforcement action over the UBWs can
be unqualified and irrevocable, relying on Building Authority v Appeal Tribunal (Building) [2005] 2
HKC 541.
45.Another limitation is, of course, that it should be
exercised with the reference of the purpose of the Buildings Ordinance.
C. Propositions (3) and (4) – absolute and blanket position?
46.Mr Ng’s primary position that an alteration order could be
issued to legalise the Subject Items falls away upon my finding that the discretion does not allow the BA to
give retrospective approval and consent.
47.Mr Ng submits that even if the discretion does not confer
power on the BA to give retrospective approval and consent, the BA (and thus the BAT) failed to consider options
available as to how to exercise its discretion to enforce the law. He submits that there were at least the
following options which the BA (and thus the BAT) should have considered before issuing or confirming the
Building Order:-
(1) Enforcement by way of demolition order;
(2) Enforcement by way of demolition order and at the same time issuing an alteration order for
reinstatement and/or alteration to render the area safe;
(3) No enforcement at all, that is, no demolition order would be issued; and
(4) No enforcement against the UBWs but at the same time issuing an alteration order to render the
UBWs safe.
48.For options (3) and (4) (not to enforce the law), there
may or may not entail an order of alteration, but on my finding that there can be no retrospective approval and
consent, it would be the alteration that may be approved and consented to, while the UBWs there would remain
unauthorised and illegal because they are unauthorised not due to the physical structures themselves but due to
lack of approval and consent in the first place. That the alteration may render the UBWs safe is one
matter, but that the UBWs would remain unauthorised is another matter. Rendering the UBWs safe does not
render them legal or authorised.
49.For option (2), the Applicant’s grievance would not be
addressed – the Applicant’s position is that an alteration order would be sufficient and there should be no need
to demolish the Subject Items.
50.Stripped to the core, in my view, these options would be
(a) to enforce; and (b) not to enforce the law. It follows that essentially, Mr Ng’s submissions would be
that the BA should consider not to enforce the law against a UBW, and only there and then, could the BA decide
to enforce the law against the UBWs. With respect, I reject such submissions as absurd. A law
enforcement agent like the BA is, as mentioned in §44(1) above, expected and charged with the duty to enforce
the law. For all sort of reasons like limited resources, the BA may prioritise the enforcement actions, or
may even knowingly tolerate the UBWs. However, this does not mean that the BA would have to consider not
to enforce the law before it could enforce the law.
51.In other words, the discretion conferred upon the BA (and
thus also the BAT) does not legally allow it to issue an alteration order in relation to the Subject
Items. The only way of enforcement in relation to the Subject Items is a demolition order, which is what
the BA did by issuing the Building Order and the BAT did by confirming the Building Order. For the
avoidance of doubt, I make it clear that my view does not mean that the BA cannot choose not to enforce the
law. My opinion is limited to that for the BA to take enforcement action against any UBW, it is not
necessary for it first to consider not to enforce the law.
52.Therefore, while the BA’s witnesses’ answers (§16 above)
may seem at a first glance to suggest that the Building Order was issued without proper exercise of discretion,
nevertheless, in the first place, there was no choice for the BA (and the BAT) to make between demolition and
alteration because:-
(1) the BA did not have any power to give retrospective approval and consent;
(2) because any order of alteration could not address the lack of approval and commencement of the
works under the legislative framework; and
(3) because the BA did not have to consider not to enforce the law before it could enforce the
law.
53.In my view, by way of example, the situation where the BA
could and/or would have to consider whether to demolish or alter is the one in §35(2) above. Another
example is the situation where the approved works have worn and torn to the extent that there may be safety
issue, and the BA may then consider whether to issue an order of demolition or an order of alteration that would
render the works safe.
54.Further and in any event, reading the Form 86 closely, the
Applicant’s grievance, as mentioned above, is that there should be no need to demolish the Subject Items, and an
alteration order alone would be sufficient. It would be disingenuous for the Applicant to contend that
because the BA failed properly to consider the option of issuing an order of alteration together with the order
of demolition, therefore, there should be no order of demolition. In my view, the outcome would still be
the same even here, namely, that an order of demolition would still be issued. If the Applicant’s
grievance is genuine that the BA should issue an order of alteration regardless of the order of demolition, the
Applicant could have submitted plans for alteration works for approval, rather than relying on the sketchy
opinion formed by Mr Hui upon visual inspections only (see §15 above) not even with any plan or relying on the
BA (as if it were his consultant and adviser) to tell him what to do.
55.For the sake of completeness, given that the evidence of
Mr Hui only sketched some possible alterations to render the Subject Items safe after his “visual
inspections” only (see §15 above), and no plans had ever been adduced, it is in my view certain that the BA, if
asked to consider the matter with Mr Hui’s evidence, would still maintain the Building Order without issuing any
order of demolition. Any suggestion that the BA should, on such sketchy evidence based on visual
inspections, then discuss with the Applicant and/or give more details on how alteration would be implemented,
misses the point that the BA is not any private owner’s consultant and adviser. Thus, there is no point in
directing the BAT to remit the matter to BA for reconsideration.
D. Conclusion
56.For the above reasons, Ground (1) is not reasonably
arguable, and so, I refuse leave on Ground (1).
V. SECOND GROUND – DISPROPORTIONATE INTERFERENCE WITH PRIVATE PROPERTY RIGHTS
57.The second ground (“Ground (2)”) advanced by Mr Ng
is that the Building Order constitutes disproportionate interference with the Applicant’s private property
rights protected by articles 6 and 105 of the Basic Law. Mr Ng makes it clear that the Applicant is not
lodging a systematic challenge that the statutory scheme of the Buildings Ordinance itself constitutes a
disproportionate interference with the Applicant’s private property rights.
58.In The Building Authority v Business Rights Ltd.
[1994] 2 HKLR 341 at 344 relations to a challenge under Article 10 of the Bill of Rights (right to fair
hearing), the Court of Appeal (Power VP, Nazareth and Litton JJA) held at (11-18) and 346 (15-20) that there is
no right to protect in the first place in any illegal structure. This reasoning may be said to have been
inconsistent with Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372 at §§24-28 in that
the Court of Final Appeal there rejected an argument that the limitation on the right to develop a land is
inherent in the right itself and thus, it would not be correct to say that there is any infringement of any
property right in the first place. It appears that The Building Authority v Business Rights Ltd.,
supra, was not considered in Hysan Development Co Ltd v Town Planning Board, supra.
59.It is not necessary for me to decide whether The
Building Authority v Business Rights Ltd., supra, represents the correct way of analysis, because even on
the analysis under Hysan Development Co Ltd v Town Planning Board, supra, I come to the same
answer that there is no disproportionate interference with the property rights protected by articles 6 and 105
of the Basic Law.
60.The question here is whether the Building Order satisfies
the well-established proportionality test explained in Hysan Development Co Ltd v Town Planning Board,
supra, at §§134-135:-
(1) Whether the intrusive measure pursues a legitimate aim;
(2) If so, whether it is rationally connected with advancing that aim; and
(3) Whether the measure is no more than necessary for that purpose.
61.Whether Mr Ng mounts a systematic challenge or not, in my
view, for the reasons I explained in §§36-38 above, I find that the legitimate aim of protecting the public from
risks of dangers is rationally connected with a demolition order, no more than necessary to ensure that owners
would apply for approval and consent before commencing the relevant works in question. Otherwise, as
explained in §38 above, the legislative scheme to protect the public from risks of dangers would be rendered
ineffective. That an alteration may be sufficient to render the structure safe does not affect this
proportionality analysis given that despite the alteration, the structure would still be illegal and the
legislative scheme to protect the public from risks of dangers would still be rendered ineffective. I can
hardly see any situation where the proportionality test would lead to a result that the very illegality
addressed by the very measure would have to remain and that the very measure addressing such very illegality
would be said to be disproportionate.
62.It remains for me to say that while the European human
rights cases cited by Mr Ng may be enlightening, it is how the proportionality test is applied to the specific
facts of the case in Hong Kong context that is more relevant.
63.For the above reasons, there is no reasonable arguability
in Ground (2), and so, I refuse leave on Ground (2).
VI. THIRD GROUND – WEDNESBURY UNREASONABLENESS
64.In support of his third ground (“Ground (3)”),
namely, the Building Order was Wednesbury unreasonable, Mr Ng relies on the matters in the first and second
grounds of the judicial review and the following matters:-
(1) Under the 2011 Revised Enforcement Policy, the enforcement approach was a risk-based approach,
and as a matter of common sense and reality, the enforcement should also be based on risk prioritisation
when the 2023 Special LSO Paper was launched under §2(g) of the 2011 Revised Enforcement Policy.
(2) However, there was no or no proper evidence at all to sustain any proposition that priority
should be given to the enforcement against the Subject Items here. Corollary, the BA failed to
consider whether the Subject Items were safe scientifically, whether they could be altered, and whether
their demolition would render the House unsafe.
65.In respect of prioritisation of enforcement and its
effect, Sky Wide Development Ltd and Others v Building Authority, HCAL 116/2008, 24 October 2008, Johnson
Lam J (as he then was) had this to say:-
“10. A very important point to note is that the policy is an enforcement policy, not a
tolerance policy. It was only because of the limited resource available that priority has to be
accorded to certain classes of cases. One should not construe such policy in a way to read it as an
assurance to the public that no enforcement action will be taken against UBWs falling outside those
categories. Nor should one read that policy as saying that no enforcement action will be
taken regarding UBWs outside those categories until all prioritized cases have been dealt with.
…
18. Further, even if there were any contravention of policy, it does not necessarily follow
that the Building Orders were null and void. It has to be remembered that there is no dispute that
the Applicants’ structures were UBWs and they had no legitimate expectation to retain the same.
…
22…I do not see how it can reasonably be arguable that the Buildings Appeal Tribunal could have
rationally decided that the Building Orders should have been set aside…
(a) The policy is a policy on priority of enforcement necessitated by limitation in
resources and NOT a policy on toleration of any UBWs, and that the ultimate goal is to clear all
UBWs;
(b) The necessary resources in question had been deployed when the Building Orders were
made;
(c) To set aside the orders at this stage would cause a waste of resources in a manner that
would not further the objectives of the policy;
(d) The Applicants had no legal right or legitimate expectation to retain the UBWs…
…
(g) The enforcement policy in 2001 calls for immediate enforcement action regarding high
priority cases and it does not rule out enforcement actions for other cases before the completion of
all
high priority cases…” (emphasis added)
66.I also refer to Technic Investment Co Ltd v Appeal
Tribunal (Buildings), supra, where Johnson Lam J, again, expressed a similar view at §15:-
“15…the guidelines were applied in the selection of buildings for a scheme of operation. They
did not rule out additional scheme of operation…where resources permitted. It would be absurd to suggest
that simply because a building did not fall within a BUC Operation for that particular year, no enforcement
action can be taken in that year under another scheme which may have different selection criteria.
Enforcement action can also be taken under an ad hoc basis. For example, if there was an accident
(say, a fire) which prompted investigation by the BA in a particular building and UBWs were found, it
cannot be sensibly suggested that no enforcement action can be taken because that building does not come
within the criteria for a BUC operation that year…
29…These policies, by their very nature, were not policies governing how the discretion was to
be exercised. They were only there to guide how the resources of the Building Authority were to be deployed
and the priority in taking enforcement action.” (emphasis added)
67.In summary:-
(1) While the BA is entitled to prioritise its resources for enforcement for the UBWs of higher
safety risks, it does not follow that the BA cannot take enforcement actions against other UBWs at the same
time, for example, like the present case, when an accident occurs and prompts the BA to deploy more
resources to carry out investigation in the vicinity of the accident. In such an example, it would be
absurd to suggest that the BA, prompted by the accident to deploy the resources, should then divert the
resources back to the UBWs of higher safety risks and cannot take any enforcement action against the UBWs
found in the investigation.
(2) In any event, not following the priority would not render the Building Order in question
invalid.
68.Decisions to enforce sections 14 and 24 of the Buildings
Ordinance are within the purview of the BA, and in my view, the 2011 Revised Enforcement Policy as well as the
2023 Special LSO Paper pursuant to §2(g) of the 2011 Revised Enforcement Policy was the outcome of the BA’s
consideration of various relevant circumstances in the exercise of discretion of how to enforce the statutory
provisions. On the strength of the authorities mentioned above, I do not find any unreasonableness or any
other legal error in the enforcement by the Building Order.
69.For the above reasons, Ground (3) is not reasonably
arguable, and so, I refuse leave on Ground (3).
VII. CONCLUSION
70.Therefore, I dismiss the Form 86.
71.For costs, in the Form 86, the Applicant requested a
rolled-up hearing or alternatively an oral hearing of the Form 86. The BA has provided full and substantial
response. In such circumstances, it is appropriate to order, and so I do, the Applicant to pay the BA the
costs of the Form 86, summarily assessed at HK$260,000.
72.It remains for me to thank Mr Ng, Mr Leung and Mr Ho for
their able assistance.
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(Gary CC Lam)
Deputy High Court Judge
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Mr Ernest Ng and Mr Raphael Leung, instructed by H.Y. Leung & Co., LLP, for the Applicant
The Putative Respondent is not represented and absent
Mr Martin Ho, instructed by Department of Justice, for the 1st Putative Interested Party
The 2nd Putative Interested Party is not represented and absent
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