Re Yat Ming Construction & Engineering Ltd

HCAL 106/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 106 OF 2005

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Before: Hon Reyes J in Court

Date of Hearing: 25 August 2005

Date of Decision: 25 August 2005

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D E C I S I O N

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1.Yat Ming was the contractor for the Blossom Terrace project.

2.Yat Ming seeks leave to apply for judicial review against certain decisions of the Building Authority (BA).  Yat Ming alleges that those decisions involved:

(1)	the BA's approval of drawings submitted by a person not listed as an Authorised Person (AP); and,
(2)	the BA's retrospective approval of drawings for works already completed by Yat Ming.

3.Yat Ming contends that the BA's approval of the drawings was illegal.

4.Yat Ming claims to have standing to bring this judicial review because it built the works which were the subject matter of the relevant drawings.  Yat Ming says that it may be exposed to litigation for carrying out the works, including "statutory sanction and civil claim for unsatisfactory or illegal works due to the default of the Unlisted AP and the decisions of the BA".

5.Yat Ming asks for the decisions to be quashed.  In addition, it asks for the following reliefs:

(1)	"The requirement of the [BA] to regularize the Project to comply with the [Buildings Ordinance (Cap.123)] by making a public announcement by way of Gazette ('the Public Announcement') to the effect that Mr. Chao [the alleged Unlisted AP], though not on the list of registered AP during the period from 12 May 2003 to 8 March 2004, is retrospectively recognised by the Building Authority as the AP for the Site Formation (Soldier Pile only) works during the said period. The effect of the Public Announcement shall: (a) include recognition and acknowledgement of the two BA14 forms signed and submitted by Mr. Chao on 12 November 2003 and 27 January 2004; (b) the withdrawal of the two BA14 forms by Mr. Lee on 30 June 2004 is void; (c) Mr. Chao shall be responsible for any liability arising out of the irregularity happened during the period; and (d) any person including the Applicant, who has a claim against Mr. Chao arising out of the irregularity shall initiate claims not later than one month from the date of the Public Announcement."
(2)	"The declaration that the Applicant shall not be liable for any statutory sanction or civil claim for any satisfactory works in the Project due to the fact that Mr. Chao was an unlisted AP or due to the decisions of the Building Authority involving any irregularity in the approval and consent procedures."

6.In my view, this is not a proper case for judicial review.

7.First, Yat Ming does not have sufficient interest or standing to commence the proposed review.  It has not been materially affected by the relevant BA's decisions.

8.Yat Ming says that it faces potential claims.  But to date no claim has been advanced against Yat Ming by anyone in respect of the works.  Nor has anyone threatened to bring any claim.  So far, Yat Ming simply does not seem to have been affected in any way by the decisions of which it complains.  No one may ever bring a claim.  I fully appreciate that Yat Ming may be worried about claims in the future.  But the Court does not decide purely academic or hypothetical questions.

9.Second, the Court cannot in anticipation curtail would-be litigants from bringing claims, whether such claims are good, bad or indifferent.  I do not think that, in a judicial review or any civil proceedings, the Court can grant the sort of substantive relief that Yat Ming ultimately seeks here.

10.Thus, for example, the Court determines the rights and obligations of the parties before it.  But the Court cannot reasonably compel the BA to make a Public Announcement that Mr. Chao (a non-party) is to be liable for any irregularity arising from the submission by him of drawings.  Such an announcement would have no legal significance.  The BA has no jurisdiction to make binding declarations of liability or right.

11.Much less can the Court compel the BA to announce that persons having a claim against Mr. Chao must bring them within a given period.  The times by which civil actions must be brought are governed by the Limitation Ordinance (Cap. 347).  The Court cannot override that statute or order the BA to do so.

12.Nor can the Court in judicial review absolve Yat Ming from any civil liability whatsoever in connection with works pursuant to drawings submitted by Mr. Chao.  It is impossible to conceive of all possible claims that may arise out of the works executed by Yat Ming.  For all one knows, Yat Ming may or may not have been negligent in carrying out the works, regardless of whether the drawings were or were not submitted by an Unlisted AP.  The Court cannot in judicial review pre-empt third parties from bringing claims on whatever ground in connection with Yat Ming's building of the works.

13.The thrust of the proposed judicial review, which seems to be to have the decisions declared void in order to absolve Yat Ming of potential civil liability in connection with the Project, is untenable in my judgment.

14.Third, Yat Ming is in effect seeking a negative declaration as to civil liability.  That suggests that judicial review is not the appropriate procedure here.  That is because in actuality this is a commercial matter.  If Yat Ming is ever sued in relation to the project, it can (if so advised) plead in its defence that it complied with the relevant drawings and was not aware that the drawings had been submitted by an Unlisted AP.  That may or may not be a good defence.  The rights and wrongs of the matter, however, can be more readily and precisely evaluated by the Court in such ordinary civil litigation, rather than in a wholly theoretical judicial review.

15.For the above reasons, leave to apply for judicial review is refused.

Mr Liu Chin Yu, instructed by Messrs Ellen Au & Co., for the Applicant