HKSAR v. Sky Wide Development Ltd and Others

[English Translation – 英譯本]

HCMA 715/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 715 OF 2011

(ON APPEAL FROM KCS Nos. 9892, 11425-8, 11430, 11432-3, 12792-3 and 12795-6 of 2010)

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BETWEEN

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Coram: Deputy High Court Judge Andrew Chan in Court

Date of Hearing: 16 May 2012

Date of Judgment: 27 June 2012

J U D G M E N T

1.The 12 appellants were each summonsed for an offence of failing to comply with a demolition order of the Building Authority, contrary to section 40(1BA) of the Buildings Ordinance, Cap. 123 Laws of Hong Kong. The particulars of the offences were that the appellants, being owners of town houses or flats situated at Sunderland Estate, No. 1 Hereford Road, Kowloon, between February and April 2010 did without reasonable excuse fail to comply with orders of the Building Authority served under section 24(1) of the Buildings Ordinance on them between February and July 2006 requiring the carrying out of works, namely to demolish the unauthorised building works and to reinstate the affected parts of the building in accordance with the plans approved by the Building Authority.

2.The 12 appellants were convicted after trial.  They now appeal their convictions.

Background

3.The present case involved nine properties in Sunderland Estate, Hereford Road, Kowloon and 12 owners thereof.  Briefly stated, the summonses alleged that those 12 owners carried out unauthorised building works on the rooftops of the nine properties.  The Building Authority served demolition orders on the owners pursuant to section 24(1) of the Buildings Ordinance.  However, when officers of the Buildings Department inspected the properties, they found that the unauthorised building works were still there.  In fact, to date these unauthorised structures have still not been demolished.

4.At trial, the defence did not substantially dispute the prosecution case.  The main issues concerned:

(1) The validity of the demolition orders issued by the Building Authority; and

(2) The argument that the owners had a reasonable excuse, in that the descriptions in the demolition orders about the unauthorised building works were unclear, as a result of which the owners were unable to know precisely which part(s) of the works they were required to demolish.

Prosecution case

5.In 2005, surveying officers of the Buildings Department were instructed to carry out surveys at Sunderland Estate.  According to the plans approved by the Buildings Department, in that housing estate there were a total of 116 detached houses and five apartment buildings.  In December 2005, Buildings Department officers saw from a height that there were structures erected on the rooftops of most of the buildings in the estate. Between January and March 2006.  Buildings Department officers entered the estate and found that:

(1) On the rooftop of House 9 a covered enclosed structure was erected, which occupied 90% of the area of the rooftop;

(2) On the rooftop of House 39 a structure was erected, with the top covered by corrugated iron or asbestos sheets and the props made of metal;

(3) On the rooftop of House 27 a structure was erected;

(4) On the rooftop of House 4 a structure was erected, and on the parapet on the rooftop metal railings were put up;

(5) On the rooftop of House 52 a structure was erected;

(6) On the rooftop of Flat 2 together with the roof on the 3^rd floor of Apartment E, a structure was erected;

(7) On the rooftop of Flat 2 together with the roof on the 3^rd floor of Apartment D, a structure was erected;

(8) On the rooftop of House 110 a structure was erected; and

(9) On the rooftop of House 49 a structure was erected.

None of these structures was included in the approved plans.

6.PW10 was a Senior Building Surveyor of the Buildings Department.  He stated that in the case of a single-staircase building not exceeding three storeys in height, even if the owner made a formal application, the Buildings Department would not allow major additional structures to be built on the rooftop.  He pointed out that in a demolition order the locations of the unauthorized structures were described in standardized and simple terms which were easy to understand.  As for minor structures for amenities such as drying racks and flower racks, even though they were not included in the approved plans, the Department might, at its discretion, consider not to require them to be demolished.  As for the metal fencing on the parapet, it could be tolerated if it was not used as a support for other things.  Therefore, the demolition order which he signed and issued did not include the metal fencing.  Furthermore, there was freestanding mechanical equipment on the rooftop which did not, in PW10’s view, constitute “structure”, but he said that the weight of the equipment should be taken into account.  If its weight exceeded the load bearing capacity of the floor, then it could be dealt with by means of other statutory provisions.

7.PW10 went on to say that an owner could appeal to the Appeal Tribunal (Buildings) within 21 days after the demolition order was issued.  Most of the owners involved in the present case had lodged appeals.  After the conclusion of the appeal procedure, the owners had by writing requested a stay of the execution of the demolition orders and, following a series of applications and replies, the Department had refused the applications.

8.PW11 was another building surveyor of the Buildings Department.  He stated that in issuing a demolition order, the Department would not consider whether a certain item was a tolerable item.

Defence case

9.All the appellants elected to remain silent.  Nor did they call any witness.

Grounds of appeal

10.The gist of the grounds of appeal is as follows:

1(a)  In convicting the 12 appellants, the magistrate erred in relying on and applying the principle expounded in HKSAR v The Incorporated Owners of No. 10 Bonham Strand, HCMA 239/2004, namely “a defendant is not entitled to challenge the legality of an administrative order in a criminal trial unless no other avenues are available to him to appeal the order” (“the principle”).  The principle had never been relied on or mentioned by the prosecution in the course of the trial and/or the closing submission.

1(b)  Further, the magistrate erred in not giving the 12 appellants any opportunity to make any reply or submission in relation to the abovementioned point which was unilaterally raised by the magistrate.

2. The magistrate erred in applying the principle, which deals with invalid demolition orders issued under the Buildings Ordinance, to the present case.

3(a) The magistrate erred in not determining the principal ground of defence, namely the demolition orders were invalid as they were too vague and as they failed to clearly identify what structures were required to be demolished.  This point was highlighted by the evidence given by the two officers of the Buildings Department, i.e. PW10 and PW11, who provided two diametrically different interpretations of the demolition orders.

3(b) Furthermore, instead of determining the principal defence put forward by the 12 appellants by reference to the evidence and arguments presented, the magistrate erroneously relied on two decided cases and concluded that the demolition orders were valid, precise and met the requirements of section 24 of the Buildings Ordinance.

Discussion

11.As mentioned above, at trial the prosecution case was by and large not disputed by the appellants.  Basically, the appellants only disputed the validity of the demolition orders issued by the Building Authority.  In their view, the descriptions in the demolition orders of the unauthorised building works required to be demolished were so vague and imprecise that the recipients of the orders could not possibly know what to do.  This, the appellants submitted, not only impacted on the validity of the demolition orders, but also constituted a reasonable excuse for the appellants’ failure to comply with the orders.

12.In his Statement of Findings, the magistrate said:

“68. As regards the validity of the orders, on which the defence takes issue, I have, apart from considering the authorities submitted by the defence, also carefully read the following four cases:

(1) R. v. Wicks [1997] 2 AER 801.

(2) Boddington v. British Transport Police [1998] 2 AER 203.

(3) The Incorporated Owners of No. 10 Bonham Strand, HCMA 239/2004. This case went on appeal to the Court of Final Appeal, FAMC 41/2004.

(4) HKSAR v. Joy Express Limited, HCMA 706/2004.”

Having quoted certain passages from those four cases, the magistrate concluded that, based on what was stated in those cases, the validity of the demolition orders in the present case was beyond challenge, particularly when an avenue for appeal was expressly provided for in the Buildings Ordinance.  Then the magistrate had this to say in his Statement of Findings:

“81. The subject-matters of the present case are the demolition orders issued under section 24 of the Buildings Ordinance. According to section 44, a person aggrieved by any decision made by the Building Authority under the Ordinance, including the decision to make a demolition order under section 24, may appeal to the Appeal Tribunal. In other words, in the same piece of legislation there is already a complete mechanism of appeal for use by property owners to challenge decisions made by the Building Authority. Moreover, the letter comprising exhibit P11J shows that the owners of the nine properties involved in the present case had applied to the Court of First Instance and the Court of Appeal for judicial review of the demolition orders, but all the applications were dismissed. …”

13.Exhibit P11J is a letter issued by the Buildings Department in December 2009.  The letter sets out the history and outcome of proceedings instituted by each of the appellants in the Appeal Tribunal, the Court of First Instance and the Court of Appeal, and reiterates that the demolition orders were served pursuant to section 24 of the Building Ordinance and were valid.

14.In other words, when the magistrate pointed out in the Statement of Findings that the validity of the demolition orders was undisputable, it cannot be said that the appellants were not aware of the prosecution’s evidence or stance onthis issue.  This issue was not something completely new.

15.I agree that at trial the magistrate had indeed not told the appellants that he would rely on those four cases, and that a more satisfactory approach was to invite the parties to make further submissions.  That said, what the magistrate mentioned in his Statement of Findings were correct legal principles.  The appellants had not applied to the magistrate for a review of his verdict; and during the appeal hearing, they did not refer me to any authorities which could show that the legal principles stated by the magistrate were incorrect.  Instead, on appeal the appellants merely rely on HKSAR v Hau Tung Ying [2011] 2 HKLRD 782 and argue that the basis on which the magistrate convicted the appellants was wider than that on which the prosecution was conducted, as a result of which the appellants were prejudiced and deprived of their right to a fair trial.

16.The circumstances in Hau Tung Ying were totally different from those in the present case.  The basis on which the appellants were prosecuted was simply that the demolition orders were valid and that the appellants failed to comply with the orders by demolishing the unauthorised structures on the rooftops.  This was also the basis on which the magistrate convicted the appellants.  The magistrate only set out the legal principles.  He had neither added in particulars of offences for the prosecution nor allowed the prosecution to put forward new allegations.  I fail to see how Han Tung Ying can be applied to the present case at all.

17.Turning to the second ground of appeal, I have carefully perused the four decided cases listed by the magistrate and am satisfied that his viewswere correct.  I entirely concur with the following comments made by McMahon J in paragraph 24 of his judgment in The Incorporated Owners of No. 10 Bonham Strand:

“ I particularly emphasise that to allow such a defence may mean the magistrate would be required to determine in a criminal trial issues of considerable public importance without the Director having any standing as a party to the proceedings. He could not appeal any such decision. I do not think any sensible difference can be drawn between orders in rem as in Boddington’s case and orders in personam as in the present case. Matters of statutory interpretation of building or other regulatory codes of practice may arise in both sorts of case so as to establish an interpretation of law or procedure without the relevant authority having an opportunity to argue its position before the court. That, in my view, is a situation to be avoided.”

18.Furthermore, in HKSAR v Joy Express Ltd (No 2) [2005] 2 HKC 147, Tong J had this to say:

“15. In para 8 of his statement of findings, the magistrate had summarized the main points raised by Mr Choy at the trial and his analysis was as follows:

‘…

15. In our present case, Part VI of the Buildings Ordinance provides for the mechanism of appeal by ‘a person aggrieved by any decision made by the Building Authority in the exercise of a discretion conferred on him under the Ordinance’. This falls within the second scenario in Boddington. The defendant cannot challenge the validity of the Order in this Court.

…’

“22. In the circumstances, having considered the learned magistrate’s reasoning and assessed the submissions by the respondent, I could find no basis to disturb the conviction.  I would therefore dismiss the appeal accordingly.”

In that case, Tong J was also dealing with demolition orders. In short, he confirmed that the relevant legal principles were correct and applicable.

19.As regards the third ground of appeal, Counsel for the appellants mainly points to the discrepancy in the evidence given by the two prosecution witnesses, namely PW10 and PW11, on the question of whether the metal fencing was part of the unauthorised structures stated in the demolition orders.  The evidence clearly showed that the metal fencing was an unauthorised structure which, in principle, had to be demolished.  If the owner chose not to demolish it, the Buildings Department considered that it could be tolerated but was not lawful.  Although the two prosecution witnesses put different interpretations on the demolition orders which they signed and issued, the contents of the orders were clear as far as the owners were concerned: they were required to demolish the building works which had been carried out without having first obtained approval of building plans and consent from the Building Authority in accordance with section 14 of the Buildings Ordinance.  As a matter of fact, to date none of the unauthorised structures has been demolished.

20.The magistrate pointed out in his Statement of Findings that he had seen the relevant drawings and photographs and had read the terms and expressions used in the demolition orders.  He considered that the descriptions in the orders were clear and hence the orders were valid.  I agree.  Besides, from the correspondence between the Buildings Department and the surveyors engaged by the appellants, which was adduced by the prosecution at trial, it can be seen that the appellants had never complained that they did not understand what structures they were required to demolish.  They had merely asked for extensions of time for the demolition by reason of rain, epidemics and so on.  Furthermore, the appellants elected to remain silent at trial, and there was no evidence before the magistrate which showed that the appellants did not understand the contents of the demolition orders. I believe that even though the so-called discrepancy between PW10’s evidence and that of PW11 did exist, it was not sufficient to vitiate the final verdict.

Decision

8. In my view, the convictions are in no way unsafe or unsatisfactory.  The appeal lacks merit and is dismissed accordingly.

Mr. Francis Lo, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the HKSAR

Mr. Erik Shum, instructed by Messrs. Lee & Wu, Solicitors, for the Appellants

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