Longest Profit (Hong Kong) Ltd v. Appeal Tribunal (Buildings)

HCAL14/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 14 OF 2012

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REASONS FOR JUDGMENT

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Introduction

1.Longest Profit (Hong Kong) Limited (“LPL”) is and was at all material times the registered owner of the remaining portion of Lot No 613 and Lot No 1229 of DD 453, Tsuen Wan, New Territories (“the Lots”).

2.On 23 March 2010, the Building Authority issued a demolition and reinstatement order in respect of the unauthorized building works carried out at the Lots under section 24(1) of the Buildings Ordinance[1] (“the Order”).  On 12 April 2010, LPL appealed against the Order to the Appeal Tribunal.  At the preliminary hearing on 11 October 2011 (“the Preliminary Hearing”), the Tribunal was satisfied that LPL had not show good cause for a full hearing and dismissed the appeal (“the Decision”).

3.The Decision was made pursuant to section 49 of the Buildings Ordinance, which provides :

“(1) The Appeal Tribunal may, in any case where it considers it appropriate to do so, hold a preliminary hearing to determine whether good cause has been shown for holding a full hearing.

(2) If the Appeal Tribunal determines that good cause has not been shown for holding a full hearing it shall make an order dismissing the appeal but shall otherwise hold a full hearing.”

4.On 5 June 2012, LPL obtained leave to apply for judicial review against the Decision.  This is the substantive hearing of the judicial review.  LPL sought to quash the Decision and for an order to require the Tribunal to re-consider the Decision in accordance with the law. 

5.Although the Tribunal has been named as the respondent, it adopts a neutral stance.  The Building Authority has been joined as an interested party and is opposing the application.

6.After hearing the parties, I dismissed the application for judicial review.  These are the reasons for my judgment.

Events leading to the issue of the Order

7.In February and March 2010, the Buildings Department received complaints about certain unauthorized building works being carried out on the Lots.  On 27 February 2010, a surveyor firm engaged by the Buildings Department inspected the Lots and discovered that some building works were in progress although no access could be gained to them.  Two buildings were under construction covered with green plastic sheet and scaffoldings.  An advisory letter was posted up on site at the time of inspection, requesting the owner/occupier of the Lots to cease and to remove the unauthorized works.

8.On 11 March 2010, the Buildings Department carried out its own inspection of the Lots.  It discovered construction of a 3-stroty structure (“the Structure”), 5 singles-storey structures and a retaining wall (“UBWs”).  In particular, the Structure looked different from the structure depicted in the photographs taken of the Lots in about 1962 and 1999.[2] LPL has been making use of the Structure and the UBWs as columbarium in breach of the permitted land use of the Lots, which is agriculture.

9.On 16 March 2010, a further advisory letter was issued to LPL requesting it to remove the Structure and the UBWs.

10.On 23 March 2010, the Buildings Authority issued and served the Order to LPL and another occupier of the Lots, requiring them to remove the Structure and the UBWs and to reinstate the parts of the Lots affected by them.  However, further inspections in April and June 2010 revealed that the Structure and the UBWs remained intact despite the Order.

The Decision

11.As said, LPL appealed against the Decision to the Tribunal on 12 April 2010.  At the Preliminary Hearing, as a result of LPL’s concession, the Structure was left as the only outstanding issue before the Tribunal.

12.LPL argued that the Structure had been in existence since 1960s.  The works depicted in the photographs taken by the Building Authority were merely renovation works which did not involve the structure of the building.  They were therefore exempted works under section 41(3) of the Buildings Ordinance.

13.The Building Authority contended that based on the evidence collected from the inspections, the Structure was a new building. Alternatively, even if it was an existing building as alleged by LPL, the on-going works carried out to it were not exempted works under section 41(3) of the Buildings Ordinance.  They were thus unauthorized and should be removed upon the Building Authority’s order under section 24 of the Buildings Ordinance.

14.The Tribunal dealt with the matter thus :

“THE PRELIMINARY HEARING

The purpose of a preliminary hearing is to determine whether good cause has been shown for holding a full hearing. The Tribunal may dismiss the appeal if no good cause has been shown.

…

The Appellant submitted that the issue to be determined by the Tribunal was whether the Structure had been recently constructed. It was the Appellant’s case that the Structure had been in existence since the 1960s and that the Appellant’s works on the Structure depicted in the photographs taken by the Respondent were renovation works which did not involve the structure of the building and were, therefore, exempted works under section 41(3) of the Buildings Ordinance.

The Tribunal was being referred to the photographs on page 74 of the Respondent’s Bundle which showed the construction of the building in the year 1962 (‘the 1962 Building’) and photographs on page 75 of the Respondent’s Bundle which showed a completed building, which photograph was taken in the year 1999 (‘the 1999 Building’). However, the Appellant was unable to substantiate that the 1962 Building and the 1999 Building was the same building as the Structure in the photographs on pages 71 and 72 of the Respondent’s Bundle.

When being asked by the Tribunal what renovation works had the Appellant undertaken on the Structure to which the Appellant replied that there was conversion of the pitched roof to the flat roof, alteration of the windows and doors, repainting of the external walls, adaptation of the internal layout, and installation of storage areas for human remains or human ashes. When further asked by the tribunal whether the alleged renovation works were exempted works under section 41(3) of the Buildings Ordinance, the Appellant was unable to give a clear answer.

The Respondent submitted that the photographs on page 74 of the Respondent’s Bundle only showed that in 1962 there was a building under construction. Likewise, the photographs on page 75 of the Respondent’s Bundle showed that there was a building in existence in 1999. Whether the 1962 Building and the 1999 Building was the same building as the Structure was unclear. However, the Respondent stated that the 1962 Building and the 1999 Building were built of bricks whereas the Structure was built of concrete.

FINDINGS OF FACT

Based upon the following reports and/or photographs :-

…

the Tribunal finds that there had been building works including the Structure in or at the [Lots] on 23^rd March 2010 when the Order was issued. These building works were carried out in or at the [Lots] without having first obtained from the Respondent the approval of building plans and consent for the commencement of the said building works as required by section 14 of the Buildings Ordinance.

By comparing the height, the roof, the façade, the windows, the materials used and the existence of the four columns on the outside of the Structure, it appears to the Tribunal that the Structure is most likely a new building but not the 1962 Building or the 1999 Building.

It is clear from previous cases decided on the issue that the renovation works allegedly undertaken by the Appellant on the Structure are not exempted works.

CONCLUSION

Based on the above findings and reasons, the Tribunal takes the view that no good cause has been shown for holding a full hearing.  The appeal is dismissed with costs to be paid by the Appellant to the Respondent.”

Discussion

15.In mounting the present application for judicial review, LPL relied on two grounds, namely the Decision was irrational and procedurally unfair.  As will be seen in a moment, it is not necessary for present purposes to deal with these grounds in great detail.  It will be sufficient to briefly deal with them as follows.

16.On irrationality, Mr Cheung, counsel for LPL, argued that the Tribunal failed to appreciate that the question to be determined at the preliminary hearing is whether good cause has been shown for holding a full hearing.  The issue raised by LPL on appeal is a factual one, namely, whether the Structure, the subject of the Order, was the same structure as depicted in the photographs in 1962 and 1999.  A proper determination could be made only after a full consideration of all of the evidence available, including evidence from live witnesses.  At the Preliminary Hearing, the Tribunal questioned LPL if there was any evidence to support its case that the Structure was the same old building existed since 1960.  The Applicant offered to call its representative as a witness to give live evidence.  But the Tribunal elected not to hear that evidence at all.  It was therefore wrong for the Tribunal to conclude that LPL was unable to substantial its claim when it was not permitted to do so.  The Tribunal had erred in refusing to consider evidence relevant to the factual issue raised by LPL.  It was an irrational decision.

17.Ms Wu, for the Building Authority, submitted that the court, when exercising its supervisory jurisdiction in judicial review, will not lightly interfere with the function of a decision maker to resolve disputed matters of fact.  Here, the Tribunal had taken into account all the evidence available, including the photographs, the various features of the Structure and the building depicted in the photographs, the differences in those features (which I would add are obvious) in coming to the finding that it was a new building.

18.In my view, the Tribunal was entitled to take into account all the evidence then before it to determine if it was necessary to hear LPL’s live witness on this issue.  On the evidence then available, which was rather overwhelming objectively, I cannot say that the Tribunal’s decision not to hear the live witness tendered by LPL is one which had no reasonable basis which warrants the court’s intervention on judicial review. 

19.On procedural unfairness, Mr Cheung argued that at the Preliminary Hearing, the Building Authority orally submitted that the Structure was built of concrete whereas the structure in the photographs taken in 1962 and 1999 was built of bricks.  The Tribunal erred in relying on this unsubstantiated oral assertion because it had never been disclosed to LPL that the Building Authority had conducted the relevant investigation.  Further, apart from the oral submission made at the Preliminary Hearing, there was no evidence to support the assertion that the structure in the photographs taken in 1962 and 1999 was built of concrete.  It was procedurally unfair for the Respondent to raise such a matter for the first time at the Preliminary Hearing.  It was unfair that LPL was put in a position where it was unable to address the allegation.  the Decision was therefore procedurally unfair.

20.However, as rightly pointed out by Ms Wu, there was evidence to substantiate the Building Authority’s case that the old building was made of brick.  And this was a not new point either.  The photographs relied on had long been disclosed to LPL and were included in the hearing bundle for the Preliminary Hearing.  LPL had ample opportunity to deal with it if so desired.  And LPL had never raised any objection to the production and use of the materials now complained of at the Preliminary Hearing.  It now lies ill in LPL’s mouth to raise procedural unfairness as a ground for judicial review.

21.There is a further fatal point against LPL’s application, which is this.  Mr Cheung’s submissions based entirely on the finding by the Tribunal that the Structure was a new one.  But in reaching the Decision, the Tribunal also accepted the alternative submission of the Building Authority that even if the Structure was a new one as contended by LPL, the buildings works carried out thereat were unauthorized in that they were not exempted works under section 41(3) of the Buildings Ordinance.  LPL had been given more than ample opportunity to deal with this matter at the Preliminary Hearing but it was unable to do so.  So even assuming that the Tribunal had erred in the way as it did in finding that the Structure was a new one, the decision not to hold a full hearing was still a correct one.  The attack based on irrationality or procedural unfairness relating to the Tribunal’s finding that the Structure was a new one, even if substantiated, does not assist LPL a bit.

22.I would add that when LPL applied for leave at the ex‑parte hearing, it had not drawn my attention to the fact that the Tribunal had found that the works carried out of the Structure were unauthorized. That is material non-disclosure.  Had LPL done so, I would not have granted leave because the intended application for judicial review would be plainly unarguable.

Conclusion

23.For the above reasons, the judicial review against the Decision must fail.  It was therefore dismissed.

Mr Albert Cheung, instructed by Wong, Fung & Co, for the applicant

The respondent, absent

Ms Teresa Wu, instructed by the Department of Justice, for the interested party

[1] Cap 123.

[2] The photographs of the Structure appear at the Bundle of Exhibits (BE) at pp 74‑75, that of the Property taken in 1962 and 1999, at BE/77 and BE/78 respectively.

Please refer to CACV60/2013 for the relevant appeal(s) to the Court of Appeal.