Chinluck Properties Ltd v. Appeal Tribunal (Buildings)

HCAL 124/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 124 OF 2012

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D E C I S I O N

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1.This is an application for leave to apply for judicial review against the Determination of the Building Tribunal. The Applicant argues that the Building Tribunal has wrongly or unlawfully refused to allow the Applicant to proceed to a full hearing of the 1^st and 2^nd appeals and dismissed the same summarily on the ground that no good cause has been shown for holding a full hearing.

Background

2.In 1996, the Building Authority (BA) issued a demolition and reinstatement order.  In 1998, the order was withdrawn by a letter dated 27 November 1998 (“the 1998 letter”).

3.A new policy was promulgated in 2001.

4.The owners and occupants of the building concerned were informed by advisory letters in 2004 that DTZ had been appointed as contract consultant to provide services for the Blitz UBW clearance at Hoi To Court and that DTZ was appointed solely for investigating certain UBWs and handling the administrative work of the related removal or repair orders.

5.There were then orders issued in 2005 and 2006 by the BA.  They were attached to or enclosed with a letter of DTZ asking the Applicant to remove UBWs which the Applicant says were the structures modified in 1998.

6.The applicant launched 2 appeals to the Tribunal against the 2 orders.  At the appeals, the Applicant argued that:

(A)  there had been unlawful delegation of statutory authority by the BA to DTZ and therefore the 2 orders were null and void.  (“ the unlawful delegation ground”).

(B)  The BA has failed to take into account the Applicant’s legitimate expectation arising out of the 1998 letter.  The Applicant had a legitimate expectation that after the necessary modifications had already been made to the UBWs, the resulting works were already in compliance with the requirements of the BA and that unless there had been relevant changes in circumstances, the works would not be considered as contravening works required to be removed.  (“the legitimate expectation ground”).

7.Having conducted an oral preliminary hearing, the Tribunal dismissed the appeals, holding that no good cause had been shown for holding a full hearing.

8.The Applicant complains that it has a real grievance to be aired and should not be shut out without being given an opportunity to have its day in court at a full hearing.

9.The question is whether it has shown there have been arguable grounds to warrant the grant of leave to apply for judicial review.

(A)  Unlawful delegation ground

10.In this application, the Applicant accepted that it may sometimes be permissible for the authority to employ an agent to assist the authority in the exercise of its statutory discretion, but a wholesale delegation of the discretion legally imposed in it would not be allowed.  The vital question is whether the statutory discretion remains in the hands of the proper authority or whether some other persons purport to exercise it, see Wade & Forsyth Administrative Law, 10^th ed, pages 259-260.  Where there is no power, it cannot be conferred on the authority by consent.

11.The Applicant argues that (i) the orders were not issued and served validly under the Buildings Ordinance by the BA direct; and (ii) there was wholesale delegation by the BA to DTZ.

12.On (i), there have been various references to sections 24(1) and 2, and various sub-sections in section 24(2), 2A(b), 2C(a)-(c), 4A-D and 4A(a)-(c) of the Buildings Ordinance.  It is submitted that the BA under section 2(1) of the Buildings Ordinance meant the Director of Buildings.  Only the BA is authorized to issue an order under section 24(1).  Under section 2(2), there is an express provision that the duties and powers granted to the BA may be carried out and exercised by an officer of any Department of the Government specified in Schedule 4.  Under Schedule 4, only 6 Departments are specified.  Needless to say, it does not include private entities, like DTZ.

13.The Applicant queries whether the orders had been issued by the BA and served by it under the Ordinance.

14.The Tribunal held that “in view of the large number of UBWs existing in Hong Kong, it is indeed necessary for the BA to delegate investigation and administration works to outside service providers. BA had explicitly stated in its advisory letter in 2004 that DTZ was appointed and stated the scope of DTZ’s powers.  The Tribunal did not find that there was any inappropriate conduct/method done by the BA which was deviated from its usual course of practice.”.

15.The point about service appears not to have been taken before the Tribunal.  The Tribunal’s findings were supported by the legislation and the orders themselves.  The orders were issued by the BA and not DTZ.  BA has never disclaimed issuing those orders.

16.On the service point, unlike section 24(1) of the Buildings Ordinance, section 24(2) regarding service of the order does not specify that it must be done by the BA.  In the present case, the orders may well appear to have been served on the Applicants through DTZ, but I see nothing in the Buildings Ordinance to preclude that.

17.With regard to (ii) (the wholesale delegation), it is said that by asserting itself to be appointed for investigating the UBWs and handling the administrative work, DTZ’s role was substantially more than that of merely providing administrative work.  On the face of such assertion, there had been a wholesale delegation of the public power to DTZ in relation to the investigation of the UBWs to be carried out without any substantial or overriding involvement by the BA.  It is said that the BA had not referred to the 1998 letter and had not exercised independent judgment of its own.

18.I find there to be simply nothing to substantiate such assertion, not on the face of any of the orders from BA or DTZ’s letters or otherwise.  The point in summary is wholly uarguable.

(B) The legitimate expectation ground

19.It is submitted that the 1998 letter, by its clear wording, constituted a direct and unambiguous representation by the BA to the Applicant that the works (done in response to the 1996 Order) were already in compliance with the requirement of BA and that unless there were some subsequent changes in the relevant circumstances, the UBWs should not be considered by the BA as contravening works required to be demolished.  It was incumbent on the BA to explain why the works were found to be non-contravening in 1998 and become contravening in 2005 or 2006, and that changes had caused the BA to refuse to honour the legitimate expectation in the Applicant.  No such explanation had been given, so the argument goes.

20.Having considered Ng Siu Tung & Ors v The Director of Immigration [2002] 5 HKCFAR 1 and R v The London Borough of Newham & Manik Bibi & Atay Al-Nashed [2002] 1 WLR 237 and directed itself on the law on this ground, the Tribunal found that there had never been any clear and unambiguous representation that the 1998 letter carried that the building works would not be subject to enforcement action and hence giving rise to legitimate expectation on the part of the Applicant.  It was also held that after the revised Enforcement Policy promulgated in 2001, the BA could continue to issue building orders against the subject UBWs when they fell within the category for removal.  The BA had already issued the 2004 advisory letters. The Applicant had never requested the BA to give any representation or documentary evidence despite ample time in the interval.  As to what circumstances or information that may exist that may justify the non-issue of the said orders that must be best known to the Applicant.  The Tribunal took the view that it could not be right that the burden was somehow reversed on the respondent to acquaint itself with the relevant circumstances or information so as to decide whether or not to issue the orders.

21.Although no authority has been cited in support, this holding of the Tribunal was in fact in line with paragraph 39 of the authority of Ko Siu Luen Louisa & Ors v Appeal Tribunal (Buildings), HCAL67/2010, 11 November 2011,  Au J.

22.Further, according to Lam J in Sky Wide Development & Ors v Building Authority, HCAL 116/2008, 24 October 2008:

“10. … 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.”

23.In the present case, whether or not the subject UBWs fell within the 2001 policy, it was conceded by counsel then acting for the Applicant that they were constructed without the consent or approval of the BA. 

24.Further on a fair reading of the 1998 letter, the BA has never made any promise or representation that could give rise to the alleged legitimate expectation.  The letter simply showed that the BA noted the modifications carried out and made clear it was prepared to withhold further enforcement of the 1996 order for the time being.  It explicitly stated that it may consider issuing a new order for the complete removal of all UBWs in future should changes in circumstances so require.  This letter did not state that the modifications rendered the structure lawful.  Nor did it state that the BA would not issue any further orders for removal.  In the premises, the legitimate expectation ground is not reasonably arguable.

25.I cannot further see any fact sensitive issue that needs to be resolved.  I bear in mind that the hearing before the Tribunal was a preliminary hearing held under section 49 of the Buildings Ordinance.  The Tribunal may refuse to hold an oral hearing where it is apparent that an ostensible dispute as to matters of fact is without substance, see Peter A de Kantzow v The Appeal Tribunal, HCMP 3193/1990, 7 February 1991, Bokhary J (as he then was).  Likewise the Tribunal may refuse to hold a hearing where the appeal is wholly lacking in merits or is frivolous and vexatious, see Building Authority v Business Rights Ltd, DCCJ 940/1993, 26 November 1993, HH Judge Downey.

26.In considering its powers, the Building Tribunal has clearly had in mind the powers under section 50 of the Buildings Ordinance. Those powers would be applicable to the hearing and determination of an appeal or a preliminary hearing held under section 49.  Reading paragraphs 27-30 of the Determination, the Tribunal has clearly and properly directed itself on its powers in an appeal before it and in a preliminary hearing.

27.Having considered all the materials before me, it cannot be demonstrated to me that there is any point which is arguable, which is worth giving leave to apply for judicial review, and therefore I decline to give leave sought.  The application is dismissed.

Mr Kenneth C K Chow and Mr Kenneth Lee, instructed by Lau & Chan, for the Applicant

Please refer to CACV242/2012 for the relevant appeal(s) to the Court of Appeal.