HKSAR v. Sze Kuk Sui

[English Translation - 英譯本]
HCMA 504/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 504 OF 2010

(ON APPEAL FROM TMS 2816 OF 2010)

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BETWEEN

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Before: Deputy High Court Judge Andrew Chan in Court

Dates of Hearing: 16 December 2010 and 9 August 2011

Date of Judgment: 4 October 2011

JUDGMENT

1.The appellant was convicted after trial on one count of “being the owner of premises, failing to comply with the requirements of a nuisance notice served by the Director of Food and Environmental Hygiene”, contrary to sections 127(3)(b) and 150 of the Public Health and Municipal Services Ordinance (the Ordinance). He now appeals against the conviction.

Prosecution case

2.The appellant is the landlord and owner of a duplex at Flat D on the 27^th Floor and 28^th Floor together with the flat roof in a private housing estate in the New Territories (the Premises).  The Food and Environmental Hygiene Department (FEHD) received a complaint from the floor below the Premises (the Premises Below)regarding alleged water seepage on the ceiling of the master suite (the Spot).  The Spot was right below the floor slab of the balcony of the Premises.

3.The FEHD appointed an independent company to conduct tests and on-site inspections on the seepage.

4.On 1 April 2009, PW1 (a staff member of the independent company) arrived at the Premises Below to conduct moisture content check.  Since the Spot was right below the balcony of the Premises, moisture readings might well be influenced by the weather condition. Ponding tests were therefore necessary so as to rule out the factor of structural defects, such as leakage on the external wall.

5.On 3 June 2009, PW1 arrived at the Premises to conduct ponding tests.  On 24 June 2009, PW1 went to the Premises Below to check the result, which showed thatthe water came from seepage at the balcony floor of the Premises.

Defence case

6.The appellant elected to remain silent.

Grounds of appeal

7.The grounds of appeals are as follows:

1. (a) The magistrate erroneously made the following findings on the issue of “common parts”:

“The appellant is the registered owner of the Premises who has the exclusive right to the use, occupation or enjoyment of the balcony of the Premises. Therefore, the appellant is obliged to maintain the balcony and flat roof in good repair and condition to ensure there is no nuisance caused by water seepage.”

(b) The key issue in the present case is not whether there is exclusive right to the use, occupation or enjoyment of the balcony or podium, but whether the “waterproofing layer” of the balcony or podium is a common part（公用部分）and whether the appellant has the power and obligation to carry out repair works.

2. The magistrate erred in finding the FEHD notice dated 19 August to be a valid notice

(a) The evidence showed (and the magistrate accepted) that the appellant was not in Hong Kong during the period specified in the notice (i.e. before 20 September);

(b) The magistrate even took the view and found that “although the notice was delivered to the Premises back on 18 August, the appellant did not return to Hong Kong until 2 September, and it is reasonable and fair for the 14-day time limit to start to run from 2 September”;

(c) It is neither permissible nor allowable for the magistrate to adopt a different method of calculating the time limit by reason of his having accepted that the appellant was absent from Hong Kong.  Upon expiry of the time limit specified in the notice to the appellant, the notice became invalid even though the appellant was out of Hong Kong at the time of expiry.  It was also not open to the magistrate to validate an invalid notice on the basis that the offence concerned was a continuing offence.

3. All in all, the conviction in the present case is neither safe nor satisfactory, in particular when the criterion of 35% moisture content adopted by the FEHD is not a recognized standard and when the FEHD did not follow its internal guidelines in issuing the notice.

Discussion

8.I have had the benefit of reading the evidence given by PW1 at trial.

9.It can be seen from the transcript of the proceedings at trial that the prosecution called PW1 because PW1 had taken part in the investigation of water seepage.  The prosecution had applied to have PW1 listed as an expert witness and PW1 had talked about his education background, qualifications and work experience.  However, the application was opposed by the defence and the magistrate made no ruling in this regard.  In other words, PW1 had never been accepted by the court as an expert witness.

10.According to the evidence, PW1 said he believed that the structure of the balcony definitely included the waterproofing layer and the seepage in question was caused by damage to the waterproofing layer, and he said so because the housing estate was constructed by a reputable developer and the seepage was not serious. However, he had never conducted any actual examination on the structure.  Therefore, when PW1 testified that the waterproofing layer definitely existed and had been damaged, he was merely expressing his personal opinion which also went beyond what he could properly give evidence on.  This point is reinforced by the magistrate’s remark, made during cross-examination of PW1 on the issue of whether the balcony was a common part, that “in fact this witness only gives evidence on such matters as he has in fact observed”.

11.Therefore, not only was there no admissible evidence to support PW1’s statement that the seepage incident was caused by damage to the waterproofing layer, the magistrate in her statement of findings also made no mention whatsoever that such waterproofing layer actually existed.  In light of the above, the precedents submitted by the defence on waterproofing layer being common parts are not applicable in the present case.

12.In addition, the magistrate pointed out:

“Section 2 of the Building Management Ordinance:

‘ “Common parts”（公用部分）means －

(a) the whole of a building, except such parts as have been specified or designated in an instrument registered in the Land Registry as being for the exclusive use, occupation or enjoyment of an owner; and

(b) unless so specified or designated, those parts specified in Schedule 1.’

Section 34H, Part VIA of the Building Management Ordinance states:

‘(1) Where a person who owns any part of a building, has the right to the exclusive possession of any part of a building or has the exclusive right to the use, occupation or enjoyment of that part, as the case may be, but the deed of mutual covenant in respect of the building does not impose an obligation on that person to maintain the part in good repair and condition, that person shall maintain that part in good repair and condition.

(2) The obligation in subsection (1) shall be deemed to be an obligation owed to all owners of the building under the deed of mutual covenant.’

Section 34C(2) states:

‘In the event of any inconsistency between this Part and the terms of a deed of mutual covenant or any other agreement, this Part shall prevail.’ ”

13.The balcony concerned is such part that has been specified in the document registered in the Land Registry as being for the exclusive use, occupation or enjoyment of the appellant, and the magistrate indicated that according to the Building Management Ordinance, the appellant was responsible for repairing the balcony that he occupied or enjoyed.  I am satisfied that this finding is reasonable.

14.Moreover, there is no evidence in the present case to indicate the scope covered by the waterproofing layer (if it does exist) of the balcony.  Nor is there evidence as to whether the waterproofing layer protects other common facilities or structures within the building and is therefore a common part.  On the contrary, the photos show that the balcony was fully occupied by items such as flowers and plants and also teapoy(s), table(s) and chair(s).  It is clear that the balcony was occupied or enjoyed by the appellant exclusively.

15.Having carefully read section 127 of the Ordinance and the cases submitted by the defence, including Rhymney Iron Company v Gelligaer District Council (1917) 1 K.B. 589, and Andrew v St. Olave’s Board of Works (1898) 1 Q.B. 775, I am satisfied that section 127 is not intended to require the relevant authority to find out the cause of the nuisance.  Provided that the authority is satisfied that a nuisance exists, a nuisance notice may be served on the person who has caused the nuisance to arise or continue within the meaning of the Ordinance.  The Ordinance also states that if such person cannot be found, the nuisance notice may be served on the occupier or owner of the premises on which the nuisance exists, requiring the latter to abate the nuisance within the specified period.

16.It is not easy to ascertain the actual cause of a nuisance, particularly in Hong Kong in which multi-storey residential buildings are everywhere to be found.  It is often necessary to make much effort, for example, by engaging engineers and surveyors to conduct inspections, before things can be brought to light. There are also many forms of nuisance, such as seepage, noise or nauseous odour.  Even for a simple nuisance like seepage, the extent thereof may differ from case to case: it may be a relatively minor case of fresh water pipe seepage, which will only affect the appearance of the residential premises or lower the quality of life; or it can be a serious case involving sewage pipe seepage, which will seriously affect the residents’ health and public hygiene.  I believe that the objective of the Ordinance is to grant power to the relevant authority to ensure that a nuisance is abated as soon as possible, while issues regarding the ultimate cause of the nuisance, liability and costs and expenses are to be resolved at a subsequent stage.

17.Following the issuance and service of nuisance notice, the appellant did in the end carry out repair work and rectify the seepage problem of the balcony.  However, he failed to abate the nuisance within the specified period, and for this the magistrate was satisfied that the appellant had to be criminally liable.  There is nothing unreasonable with this ruling.

18.Turning to the second ground of appeal, the appellant argues that the authority sent him the nuisance notice not by registered post but merely by recorded delivery, which did not meet the requirement of the Ordinance.

19.What the appellant said is true.  However, the evidence shows that the nuisance notice had in fact been mailed to the Premises, the appellant’s domestic helper had signed to acknowledge receipt of the notice, and subsequently the appellant requested his staff to contact the FEHD for follow-up.  In other words, the service of the nuisance notice had satisfied the requirement under section 134(c) of the Ordinance, namely that the notice had been left with an adult occupier of the premises or place to which the notice related.  The appellant was all along aware of the requirements of the Ordinance, and the nuisance notice had been served on him, albeit in another way.  Such service had not caused any injustice to him.  Whether or not he was in Hong Kong at that time had nothing to do with the validity of the nuisance notice.

20.In determining the time atwhich the appellant failed to comply with the nuisance notice, the magistrate had in fact taken an approach fairer and more generous to the appellant, by taking the date of his return to Hong Kong as the date on which the time limit commenced.  I see nothing improper with that approach.

21.As to the third ground of appeal, the magistrate had already dealt with it in her statement of findings and I do not propose to repeat what she said.  In addition, at trial the defence never applied for discontinuation of the hearing.

22.The appeal lacks merits and is dismissed accordingly.

Mr. William Tam, Senior Assistant Director of Public Prosecutions and

Mr. Andrew Cheng, Public Prosecutor of the Department of Justice, for the HKSAR

Mr. Osmond Lam, instructed by Messrs. Cheung & Yip, for the Appellant

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor.