Ko Siu Luen, Louisa and Others v. Appeal Tribunal (Buildings)

HCAL 67/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 67 OF 2010

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BETWEEN

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Before: Hon Au J in Court

Date of Hearing: 17 August 2011

Date of Judgment: 11 November 2011

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J U D G M E N T

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A. Introduction

1.The Applicants are the registered owners of various residential apartments in Wing On Towers (“Wing On Towers”), Nos. 7 & 9 Boyce Road, Jardine’s Lookout, Hong Kong.

2.In June 2006, the 1^st, 2^nd and 3^rd Applicants were respectively served with demolition and re-instatement orders issued by the Building Authority (“the BA”), requiring them to demolish various unauthorized building structures found on their respective apartments. 

3.The Applicants each appealed to the Appeal Tribunal (Buildings) (“the Tribunal”) against these demolition orders.  By the determination (“the Determination”) dated 8 April 2010, the Tribunal dismissed all their appeals and confirmed the demolition orders. 

4.This is the hearing of the Applicants’ judicial review application against the Determination of the Tribunal.

5.The Applicants seek to quash the Determination and for an order of mandamus to require a differently constituted Tribunal to re-consider the Determination in accordance with the law and to allow the appeals.

6.The Tribunal is joined as the Respondent in this application, but it takes a neutral stance and has not any taken active steps in the proceedings.  The BA is joined as the Interested Party and is the main opponent to the application.

B.      Background

B1.    Unauthorised building works and the Buildings Ordinance

7.Subject to some exemptions, under s. 14 of the Buildings Ordinance (Cap 123) (“BO”), anyone who wants to commence or carry out any building works must first obtain the BA’s approval in writing of the documents submitted to him in accordance with the buildings regulations.

8.Building works on buildings in Hong Kong which have been carried out without obtaining such prior approval (and thus in contravention of s. 14 of the BO) are regarded as unauthorised building works (“UBWs”).   Under s. 24 of the BO, the BA may issue a demolition order to require the removal of UBWs.

9.Relevant for the present purposes, s. 24 of the BO provides as follows:

“(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.

(1A) Subsection (1) does not apply in respect of minor works commenced under the simplified requirements.

(2) An order made under subsection (1) shall be served on-

(a) in the case of a building or building works but subject to subsection (2A), the owner of the land or premises on which the building has been erected or on which the building works have been or are being carried out;

(b) …

(c) …

(2A) Where the building or building works referred to in subsection (2)(a) is or are-

(a) connected to land or premises (in this section referred to as "other land or premises") other than the land or premises on which the building has been erected or on which the building works have been or are being carried out; and

(b) occupied or used by the owner or occupier of that other land or premises,

subsection (2)(a) shall not apply and in such a case, an order made under subsection (1) in respect of the building or building works shall be served on the owner of that other land or premises.

…”

10.Thus, under s. 24 of the BO, the BA may issue orders (generally “s.24 demolition orders”) to, inter alia¸ require the owners of the premises where UBWs are found to demolish the same.  A s. 24 demolition order shall specify the time within which the demolition, alteration or work shall be commenced and by when it shall be completed.

11.Under s. 44 of the BO, any person aggrieved by the BA’s decision, inter alia, to serve a s. 24 demolition order on him may appeal to the Tribunal.

12.Under s. 50 of the BO, the Tribunal on hearing such an appeal may receive and consider oral, documentary or other evidence^[1]. In determining an appeal, the Tribunal may confirm, vary or reverse the decision that is appealed against, or substitute therefor such other decision or make such other order as it thinks fit^[2].

B2.    The enforcement on the removals of UWBs

13.Since 1999, the Buildings Department (“BD”) has in every year carried out a large-scale operation for the removal of UBWs on buildings in Hong Kong.  The operation is generally known as a “Blitz UBW Clearance Operation”.    However, given the very large number of UBWs existing in Hong Kong, the BD has to prioritise its operations.

14.In April 2001, the BD revised its policy (“the 2001 Enforcement Policy”) to intensify and re-prioritise its enforcement action against UBWs.   Under this policy, the BD would take immediate enforcement action against all new UBWs and UBWs which pose an obvious hazards to life or property.  Priority would be given to the removal of the following types of works:

“ (a) items constituting obvious or imminent danger to life or property;

(b) new items, irrespective of the date of completion of the building where they have been carried out;

(c) items in or on buildings, on podiums and rooftops, in yards and lanes (including unauthorized site formation works) constituting a serious hazard or a serious environmental nuisance, as determined by the Building Authority;

(d) major individual items;

(e) items in or on buildings with extensive unauthorized building works;

(f) items identified in buildings or groups of buildings targeted for large-scale operations or maintenance programmes; and

(g) unauthorized alterations to or works in environmentally friendly features of a building (e.g. balconies, sky or podium gardens) for which exemption from calculation of gross floor area has been granted by the Building Authority.” (emphasis added)

15.In the press announcement concerning the 2001 Enforcement Policy, the BD stated that in its Blitz operations, it would “adopt this approach for major clearances, particularly those items on the external walls of buildings 20 to 40 years old and some on podiums and rooftops or in yards and lanes”.

B3.    The s. 24 demolition orders against the Applicants

16.In 2004, Wing On Towers was one of the target buildings designated by the BD for the Blitz UBW Clearance Operation 2004 (“the 2004 Blitz Operation”) in pursuance of the 2001 Enforcement Policy.

17.On 3 September 2004, advisory letters were issued separately by the BD and its consultant LC Surveyors Ltd to inform the owners or occupiers of Wing On Towers that their buildings were so identified as targeted buildings for clearance of UBW.  The owners or occupiers were advised to remove the UWBs voluntarily.

18.Subsequent to the advisory letters, L C Surveyors had carried out inspections to identify all the UBWs on Wing On Towers. Pursuant to such identifications, on 9 June 2006, the BD served various s. 24 demolition orders on those owners or occupiers, ordering the removal of UBWs and reinstatement of the affected parts of the building in accordance with the plans approved by the BA.

19.The three Applicants were amongst those owners who had been served with s. 24 demolition orders in relation to various UBWs built on their respective apartments of Wing On Towers.  Specifically relevant for the present purposes:

(1)   The 1^st Applicant was served with a s. 24 demolition order (“the 1^st Order”) relating to two structures with air-conditioner supporting frames erected on and over approved architectural features on Flat A, 1/F of Block 1, Wing On Towers at the front facing Boyce Road (“UBW1”).

(2)   The 2^nd Applicant was served with a s. 24 demolition order (“the 2^nd Order”) relating to two structures with two air-conditioner supporting frames and two solid hoods erected on and over approved architectural features on Flat B, 3/F of Block 1, Wing On Towers at the front facing Boyce Road (“UWB2”).

(3)   The 3^rd Applicant was served with  (a) a s. 24 demolition order (“the 3^rd Order”) relating to two structures erected on and over approved architectural features on Flat B, 5/F of Block 1, Wing On Towers at the front facing Boyce Road (“UBW3”), and (b) another s. 24 demolition order (“the 4^th Order) relating to one structure erected on and over approved architectural features on Flat B, 6/F, Wing On Towers at the front facing Boyce Road (“UBW4”) and one illegal opening formed in the external wall (“UBW5”) and one railing (“UBW6”) erected on and over approved architectural features on Flat B, 6/F, Wing On Towers at the front facing Boyce Road.

20.It is the Applicants’ case that these UBWs fall into broadly two categories:

(1)   UBW1 to UBW4 and UBW6 are structures erected on and over the approved architectural feature; and

(2)   UBW5 is an opening formed in the alleged external wall.

B4.    The appeals to the Tribunal

21.In June 2006, the Applicants filed Notices of Appeal to the Tribunal pursuant to s. 47 of the BO and s. 3 of the Building (Appeal) Regulation respectively in relation to the 1^st, 2^nd, 3^rd and 4^th Orders (collectively, “the Orders”).    I would refer them respectively as the 1^st Appeal, the 2^nd Appeal, the 3^rd Appeal and the 4^th Appeal, and collectively “the Appeals”.

22.The Applicants had filed evidence for the Appeals.  The Tribunal also directed that the Appeals were to be heard together in a full hearing.

23.In light of the grounds of appeal raised by the Applicants, the issues in the Appeals as identified by the Tribunal are as follows:

(1)   Whether the subject UBWs are exempted works under s. 41(3) of the BO;

(2)   If the UWBs are not exempted works, are they actionable UWBs;

(3)   Did the BA carry out its discretion fairly under s. 24(1) of the BO by issuing the 1^st, 2^nd, 3^rd and 4^th Orders to remove the UBWs;

(4)   If the Applicants fail on the above issues, should the Tribunal exercise its own discretion on the materials before it to allow the appeals.

24.The full hearing of the Appeals was held between 21 and 25 September 2009.  Live evidence, including expert evidence, was called. The evidence related to matters, amongst others, such as whether the UBWs were exempted works under the BO or whether they were actionable UBWs, and the respective personal circumstances of the Applicants.

25.On 8 April 2010, by the Determination, the Tribunal dismissed the Appeals. 

26.Although dismissing the Appeal, the Tribunal in fact found that the subject UWBs did not fall within the scope of the 2004 Blitz Operation.  It was therefore incorrect for the BD to regard them to be actionable under the said operation.  However, the Tribunal further concluded that those UBWs were not exempted works and were thus unauthorized structures under the BO.  They were therefore in any event liable to be removed.  The BA was thus still correct to exercise its discretion to issue the Orders.  The Tribunal also refused to exercise its discretion on appeal in favour of the Applicants, as (the Tribunal reasoned) the BA’s original exercise of discretion under s. 24 of the BO to issue the Orders was not Wednesbury  unreasonable.

27.On 7 July 2010, the Applicants applied for leave to apply for judicial review against the Determination.   After hearing, Lam J granted leave to the Applicants on certain grounds as set out in the original Form 86 and on an additional ground advanced at the hearing. 

28.Pursuant to the said leave, the Applicants filed the Amended Form 86 on 20 September 2010 setting out those grounds. 

C.      The grounds of judicial review

C1.    The BA had fettered its discretion in applying the 2001 Enforcement Policy

29.This ground is set out at sections D3.1 and D3.2 of the Amended Form 86^[3]. In gist, the Applicants’ arguments run as follows:

(1)   As a matter of law, the BA has a discretion under s. 24 of the BO to decide whether or not to issue a demolition order in relation to any unauthorized works^[4].

(2)   However, in deciding to issue the Orders, the BA had fettered its discretion in simply applying the 2001 Enforcement Policy through the 2004 Blitz Operation.  This is so because (a) the 2001 Enforcement Policy itself is s rigid policy (in that it only deals with enforcement without leaving any room for considering the individual circumstances of each case to decide whether or not to enforce a demolition), or alternatively, even if the policy itself is not rigid, the BA had applied it rigidly without taking into consideration of the individual circumstances of each of the Applicants’ case.

(3)   The fettering of a discretion is a valid ground of judicial review^[5].

30.I see no merits in this ground. 

31.This is an application for judicial review against the Tribunal’s decision (i.e., the Determination), and (as mentioned above) the Tribunal decided in favour of the Applicants’ arguments in the Appeals that the subject UBWs did not fall within the scope of the 2004 Blitz Operation (which was carried out to pursue the 2001 Enforcement Policy)^[6].  In other words, the Tribunal’s decision to uphold the Orders is not based on the application of the 2001 Enforcement Policy, but on the ground that the UBWs are in any event liable to removed as unauthorised building structures under the BO^[7].

32.In the premises, the 2001 Enforcement Policy is irrelevant to upholding of the Orders in the Determination, of which the Applicants now seek to review.

33.In any event, I do not agree that the 2001 Enforcement Policy is rigid by itself nor the BA in the present case had applied the policy rigidly as submitted.  In this regard, I agree with the reasoning of the Tribunal set out at paragraphs 32 to 38 of the Determination in rejecting these arguments.  For convenience, I would repeat them as follows:

“32. In Quebostock Limited v The Building Authority [1986] HKLR 467, the Court of Appeal held that the word ‘may’ in section 24(1) of the Building Ordinance denotes a discretion. The Building Authority may make an order or it may not.

33. The Appellants [i.e., the Applicants] challenged the Respondent [the BA] in issuing the section 24(1) orders by adopting a rigid policy or by implementing a policy in an inflexible manner. Further, the Respondent never invited the Appellants to make any representations.

34. The Respondent, in its internal EB Division Manual Part II Instruction No.1 first issued on May 2002, recognized its position and acknowledged that the 2001 policy is laid down ‘to ensure fairness and transparency in the exercise of discretionary powers and ... in exercising their discretionary power, its officers should consider the merits of each individual case.’

35. To a certain extent, this Tribunal shares the view of the Tribunal in Tang Ping-wai & Chow Sui-chee v Building Authority Appeal Case No.107-96, where it was stated that ‘The appellants complained that the Building Authority did not do any investigations as to the safety or otherwise of the structures before the issue of the Orders ... ... ... if (it) is required to do so, the Building Authority would have to employ a staff the size of the Hong Kong Police Force to test every structure that was built without any approval ... ... . The job to control illegal structures is already difficult enough, and to place the onus on the Building Authority to investigate every illegal structure before issuing an order for demolition will create even bigger backlog in the clearing of illegal structures.’

36. In view of the large number of UBW existing in Hong Kong, it is indeed necessary to formulate an enforcement policy and it is impossible for the Respondent to examine each and every UBW before issuing a section 24(1) order. The Respondent is entitled to adopt a policy and follow the policy provided that the existence of the general policy does not preclude it from fairly judging relevant issues in each individual case.

37. This Tribunal rejects the Appellants' submission that the Respondent fettered its discretion by adopting the 2001 Policy rigidly. In fact, the EBD Manual Part II Instruction No.1 requires the Respondent's officers to consider the merits of each individual case before they issue the order though it may not be practicable for the Respondent to investigate each individual case.

38.       It is in the interest of the Appellants to make representation to the Respondent for any circumstance that merits special consideration.  They should do so as early as possible.  In these cases, the Appellants have ample time to do so but they failed to take any actions despite the fact that there was a residents' meeting with the Respondent attended by its officers, they did not make use of that occasion.”

34.I would therefore reject this ground of judicial review.

C2.    Wednesbury unreasonableness

35.At the first part of paragraph 40 of the Determination, the Tribunal concluded that the BA was justified in the exercise of its discretion under 24 of the BO in issuing the Orders because at that time, “there did not seem to have any evidence to show why the orders should not be made”.  The Tribunal was referring to the fact that between the time when the Applicants received the advisory letters and the time when the Orders were issued, the Applicants had not made any representations or submissions to the BA as to why demolition orders should not be issued regarding the subject UBWs.

36.The Applicants now challenge this conclusion to be Wednesbury unreasonable.  This ground is set out in the Amended Form 86 as follows:

“52. The Tribunal's finding in paragraph 40 of the Determination (that when the BA exercised its statutory discretionary power to issue the section 24 Orders, he did not seem to have any evidence to show why the same should not be so made) was:-

52.1 unnecessary and irrelevant given that the Tribunal was duty bound to exercise it own discretion on the facts and law before it: see section D.5 below;

52.2 unreasonable given:-

(a) the Tribunal's finding that the alleged UBWs are not actionable under the 2001 Enforcement Policy and the Blitz UBW Clearance Operation 2004: see paragraph 29 of the Determination;

(b) the oral evidence given by the BA's witness, Fu Tak Ming ("Fu") (a Senior Building Surveyor of BD) that

(i) when the Advisory Letters were issued, UBW1 to UBW6 had not even been identified;

(ii) the BA never invited the 1^st, 2^nd and 3^rd Applicants to make any representations on the merits of their cases after the alleged UBWs had been identified but before the section 24 Orders were issued (see page 229 line O to page 235 line I of the Transcript, Day 3); and

(c) the BA was duty bound to ask himself the right questions and also to take reasonable steps to acquaint himself with the relevant information to enable him to answer them correctly. It was not for the 1^st  2^nd and 3^rd Applicants to acquaint the BA with the relevant information.”

37.In his skeleton, Mr Ismail for the Applicants further submits that this conclusion (i.e., the BA was justified in its discretion to issue the Orders) is also inconsistent (and thus Wednesbury unreasonable) with the Tribunal’s own conclusion that the subject UBWs did not fall within the scope of the 2004 Blitz Operation.

38.I do not agree with the Applicants’ submissions.  My reasons are as follows.

39.First, the Applicants’ contentions, if correct, would amount to imposing a positive duty on the BA to find out the so-called “relevant information” relating to each of the owners or occupies of properties where UBWs have been identified.    I do not read s. 24 of the BO to be imposing such an onerous duty on the BA.  The BA is to enforce the provisions of the BO, and it must be noted that, once an UBW is identified, the owner or occupier is prima facie in breach of the BO.   Moreover, as to what information or circumstances that may exist that may justify the non-issue of a s. 24 demolition order must be something which is only best known to the owners or occupiers.  It cannot be right that the burden is somehow reversed on the BA to, as suggested by the Applicants, acquaint itself with the relevant information so as to decide whether or not to issue the s. 24 demolition orders.

40.In this regard, I would also refer to what the Tribunal has said on this at paragraphs 37 and 38 of the Determination as quoted above, and the Tribunal’s above conclusion at paragraph 40 must be read in that context as well.  Once so read, I do not find the Tribunal’s said conclusion to be unreasonable as submitted by the Applicants.

41.Secondly, as mentioned above, although the Tribunal found that the subject UBWs were not actionable under the 2004 Blitz Operation, the Tribunal also found that these UWBs were in any event still unauthorized building structures and should be removed.  It therefore decided to uphold the Orders.  

42.In particular, in coming to that conclusion, the Tribunal relied on the authority of Sky Wide Development Ltd v the Building Authority[8]. In that case, the BA in pursuance of the 2001 Enforcement Policy served certain s. 24 demolitions on the applicants.  The applicants sought leave to judicial review the BA’s said exercise of discretion under s. 24 of the BO.  One of the proposed grounds of judicial review was that the subject UBWs in that case did not fall within the enforcement policy.  Lam J refused leave.  In relation to this ground, the learned judge was of the view that, even if the UBWs did not fall within the enforcement policy, so long as they were unauthorised building structures, the BA was entitled to exercise the discretion to issue the s. 24 demolitions and there was nothing to make that exercise reviewable in the public law sense.  He explained at paragraphs 10 and 18 of the Reasons for Decision as follows:

“10. A very important point to note is that the policy [the 2001 Enforcement 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.”

43.In adopting Sky Wise, the Tribunal was clearly correct in law in its conclusion that the BA was still right to exercise its discretion with the evidence before the BA even though the subject UBWs (as found by the Tribunal) did not fall within the 2004 Blitz Operation. In any event, it cannot be said that this conclusion is one that no reasonable tribunal in the position of the Tribunal would have come to.

44.I would also reject this ground of judicial review.

C3.    The tribunal failed to exercise its own independent discretion

45.As I mentioned above, the Applicants adduced fresh evidence^[9] at the Appeals to invite the Tribunal to (a) rule that the subject UBWs were exempted works under the BO, or (b) in any event exercise its own discretion afresh on appeal under s. 50(2) of the BO to reverse the BA’s decision to issue the Orders. 

46.The Tribunal rejected that the UBWs were exempted works.  This part of the decision no longer features in this judicial review.

47.Insofar as the exercise of its own discretion on appeal is concerned, the Tribunal refused to exercise it in favour of the Applicants.  It explained why at paragraphs 39 and 40 of the Determination as follows:

“39. Section 50(2) of the Building Ordinance confers a wide power on this Tribunal to confirm, vary, reverse or substitute the decisions that at present appealed against or make such other order as it thinks fit.

40. At the time the Respondent exercised its statutory discretionary power to issue the section 24(1) orders to the Appellants, there did not seem to have any evidence to show why the orders should not be so made. The Tribunal would not interfere with the Respondent unless the Respondent exercises that discretion unreasonably as laid down by the established Wednesbury principle. This Tribunal does not find the reasons offered by the Appellants warrant it to take such step.” (emphasis added)

48.The Applicants submit that the said reasoning shows that the Tribunal, in the purported exercise of its own discretion, had only considered that the BA’s original exercise of discretion (with the evidence then before the BA) was not Wednesbury unreasonable and had entirely failed to give any considerations to the ample new evidence adduced before it, which was not before the BA.   The material parts of this new evidence were summarised at paragraph 54 of the Amended Form 86 as follows:

“54. There was ample material before the Tribunal (which did not as a matter of law need to be before the BA) to reverse the section 24 Orders or to substitute the section 24 Orders with other orders viz

54.1 The Tribunal found that the alleged UBWs are not actionable under the 2001 Enforcement Policy and the Blitz UBW Clearance Operation 2004: see paragraph 29 of the Determination. In Case No 362 of 2004, unreported, 20 May 2005, the BA ordered the demolition of a structure on the ground that it was two storeys and within its policy of ordering the immediate demolition of unauthorized structures of two storeys or above. The Tribunal allowed the appeal because the majority was of the view that the structure was a one storey structure with a cockloft or attic and therefore not liable for immediate demolition under the policy.

54.2 UBW 1 to UBW 6 are not additions.

54.3 The ‘box’ structures which are rigid and its components or pieces are made of concrete embedded or reinforce with metal bars, are capable of supporting the weights of UBW 1 to UBW 6.

54.4 The permitted site coverage and plot ratio under the B(P)R and the permitted plot ratio under the outline zoning plan will not be exceeded.

54.5 UBW 1 to UBW 6 were completed and existed for a long time and in Anna Kwong's opinion, they do not create any fire and/or structural hazards or obvious/ imminent danger to life/ property.

54.6 The evidence of Anna Kwong (who was once a senior building surveyor with the BA) that if a submission had been made to the BA at the time for approval of UBW 1 to UBW 6, there is no reason why the BA would not have approved them. This is because the works involved would have complied with all necessary requirements for obtaining approval and consent under the BO.

54.7 The personal circumstances of the 1^st Applicants: see paragraph 2,3 and 4 of the Statement of Particulars in the 1^st Appeal repeated and relied upon in the Witness Statement of Ko Siu Lam, Louisa;

54.8 The personal circumstances of the 2^nd Applicant: see paragraph 2,3 and 4 of the Statement of Particulars in the 2^nd Appeal repeated and relied upon in the Witness Statement of Tong Wai Che, Wendy; and

54.9 The personal circumstances of the 3^rd Applicant: see paragraph 2,3,4 and 6 of the Statement of Particulars in the 3^rd Appeal repeated and relied upon (with a clarification) in the Witness Statement of Lee Ching Kwok, Rin.”

49.In the premises, the Tribunal (the Applicants further submit) had failed to exercise its own discretion independently or had fettered its own discretion.  The Determination should thus be quashed.

50.I think the Applicants are right in these submissions.  I will explain why as follows.  

51.S. 50 of the BO reads as follows:

“(1) The following shall apply in relation to the hearing and determination of an appeal or a preliminary hearing held under section 49-

(a) every question shall be determined by the opinion of the majority of the members of the Appeal Tribunal;

(b) where there is an equality of votes, the Chairman shall have a casting vote;

(c) the Appeal Tribunal may-

(i) receive and consider any oral, documentary or other evidence, (including any written statement), whether on oath, affirmation or otherwise, and whether or not it would be admissible in evidence in proceedings in a court;

(ii) by summons issued in the prescribed manner, require any person to attend before it at any hearing to give evidence or to produce any document;

(iii) administer oaths or affirmations;

(iv) examine on oath, affirmation or otherwise any person attending before it and require such person to answer any question put by or with the consent of the Tribunal.

(2) In determining an appeal, the Appeal Tribunal may make an order confirming, varying or reversing the decision that is appealed against or substituting therefor such other decision or make such other order as it thinks fit.”

52.Under s. 50(1) of the BO, the Tribunal in hearing an appeal is free to receive and hear new evidence.  The appeal is thus intended (as rightly submitted by Mr Ismail) to be a de novo hearing^[10].

53.Properly reading s. 50(2) of the BO in such a context, the Tribunal is given by the statute a wide and unfettered discretion on appeal to decide on merits as to whether (for the present purpose) the s. 24 demolition orders should be served on the Applicants relating to the subject UBWs.  The Tribunal should exercise the said discretion afresh and independently on merits, in light of all the evidence (including new evidence) and submissions made before it in the Appeals.

54.It must be remembered that the Tribunal is not hearing the appeals as if they were a judicial review application.  It is hearing on appeal the matters de novo on merits.  In the premises, the Tribunal was wrong in law to import the principle of Wednesbury unreasonableness (a public law principle) to restrict and limit its own exercise of the discretion on appeal.  In so concluding at paragraph 40 of the Determination, the Tribunal had wrongly fettered its own discretion.   Moreover, in (wrongly) applying the test of Wednesbury unreasonableness, it had also failed to or to properly consider the new evidence adduced by the Applicants in the Appeals.

55.I would therefore allow the judicial review on this ground. 

56.The matters should be now remitted back to the Tribunal to re-consider exercising its discretion afresh and independently on merits with all the evidence adduced at the Appeals.  In order to save time and costs, insofar as practicable, the constitution of the Tribunal for re-hearing the matter in relation to this ground should be the same as the Tribunal originally hearing the Appeals.

C4.    The Additional Ground

57.This ground is set out in the Amended Form 86 as follows:

“55A. The section 24 Orders are fundamentally flawed, a nullity and invalid in law because they require the Applicants to commence and carry out building works without having first obtained from the BA his approval to plans for such works and consent in writing for the commencement of such works shown in such plans in contravention of section 14 of the BO which the BA has no power to exempt from or modify by reason of section 42(5) of the BO.

55B. The demolition of any unauthorized building works (including UBW 1 to UBW 6) and re-instatement of the parts of the building so affected by the UBWs in accordance with the approved building plans referred to all orders issued under section 24(1) of the BO (including the section 24 Orders) are themselves "building works" as defined in section 2(1) of the BO and therefore subject to section 14(1) of the BO.

55C.    In so far as may be necessary, the Applicants will rely on Order No. UBZ/U07-16/0018/06 dated 16 October 2007 issued by the BA under section 24(1) of the BO in which the BA,  inter alia, required the addressee to appoint an Authorized Person to coordinate the demolition and reinstatement works and required such Authorized Person to submit plans in respect of the demolition works of the UBWs to the BA for approval which had to be obtained before commencement of the works.  Such requirement of the Authorized Person is clearly a reference to section 14 of the BO which is absent from the section 24 Orders.”

58.In substance, the Applicants contend that the Orders themselves are illegal as they are in breach of s. 14 of the BO, since in effect the Orders ask the Applicants to commence and carry out those demolition works (which are defined to be building works under the BO) without first obtaining approval from the BA.

59.This argument was not raised before the Tribunal in the Appeals.  So, this is an entirely new point raised for the first time.

60.Judicial review is not an appeal and the function of the Court is not to rehear the case on its merits.  In judicial review, the Court would only interfere in the subject decision if it contains errors of law, is unreasonable or irrational in the public law sense, or is a result of procedural errors or unfairness.  

61.However, an entirely new argument like this simply could not be relied upon to show that the Tribunal was wrong (in the public law sense) in coming to the Determination as this was not an issue before the Tribunal.  Further, to permit this to be raised now would also effectively amount to allowing the Applicants to pursue a second or alternative appeal under the pretence of judicial review, which cannot be right^[11].

62.Therefore, it is not for this Court in a supervisory role to consider in the present case an issue that was never raised and argued before the Tribunal, in particular if the new issue relates to fact sensitive arguments. For example, in one of its submissions made to counter this ground, the BA submits that, even if (which it disagrees) the Orders did engage the requirements under s. 14(1) of the BO, it is clear on the facts of the present case that the BA did approve and consent to the demolition works required under the Orders.    This is a fact sensitive argument which should have been dealt with by the Tribunal but not this Court for the first time in judicial review.

63.In the circumstances, I would not allow this new argument to be raised now against the Determination for the purpose of the judicial review. 

D.  Conclusion

64.For the reasons given above, the Applicants succeed in this judicial review, and I would quash the Determination on the basis that the Tribunal failed to exercise its own discretion independently or had wrongly fettered its own discretion on appeal.  I further order that the matters be remitted back to the Tribunal for a fresh consideration in relation to its own exercise of discretion in light of the all evidence adduced before it for the purposes of the Appeals.  Insofar if it is practicable and possible, the new Tribunal should have the same constitution as the one originally hearing the Appeals in order to save time and costs.  

65.I further make an order nisi that costs of this application be to the Applicants.

66.Lastly, I thank counsel for their helpful submissions.

Mr. Anthony ISMAIL, instructed by Messrs Woo, Kwan, Lee & Lo, for the 1^st to 3^rd Applicants.

Mr. Abraham CHAN, instructed by Department of Justice, for the Interested Party.

The Respondent, represented by Department of Justice, excused from attendance.