HKSAR v. Ho Chung Yi Henry and Others

KCS 4906-4911/2013

IN THE KOWLOON CITY MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CASE NO. 4906, 4907, 4908, 4909, 4910 AND 4911 OF 2013

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REASONS   FOR   VERDICT

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Introduction

1.As a result of the wide coverage in media on the suspected illegal structures at the premises at No. 7 York Road, Kowloon Tong in connection with Ms Lisa Kuo, the Buildings Department carried out extensive investigations in 2012 and finally laid various summonses against four defendants.  Among these illegal structures are the basement under the lower ground floor of the premises and the 2 skylight openings at the bottom slab of the swimming pool that formed the subject matter of these summonses.  It is beyond debate that the basement and the skylight openings were illegal structures as and when they were uncovered in 2012.  However, the way of the prosecution presented these summonses require him to prove certain unauthorized building works as more particularly described hereunder, were commenced or carried out before the occupation permit issued in February 2007.  The main issue in this trial is whether the unauthorized building works, if any, were commenced or carried out before the occupation permit issued in February 2007.   To assist this Court to adjudicate on the main issue, the parties relied very much on expert evidence.

Background

2.This trial concerned D2, D3 and D4 only.  The 1^st defendant Ms Lisa Kuo (D1) has pleaded guilty to the summons KCS 4904/2013 (with the offence period between 26 August 2005 and 30 December 2010) and she has been sentenced by another magistrate.    Each of the remaining defendants herein is facing 2 summonses. 

Charges and the Legislation

3.In respect of the summonses KCS 4906/2013, KCS 4907/2013 and KCS 4908/2013, D2 to D4 were respectively charged with the offence with identical particulars. That is between 26 August 2005 and 22 January 2007 (both dates inclusive), at No. 7 York Road, Kowloon Tong, Hong Kong (7YR), D2 to D4 commenced or carried out building works, namely the construction of the upper portion of a basement with two skylight openings, without having first obtained from the Building Authority (BA) his approval and consent in writing.  The said offence were contrary to sections 14(1) and 40(1AA) of the Buildings Ordinance (BO), Cap. 123.

4.Section 14(1) of the BO reads:

“Save as otherwise provided, no person shall commence or carry out any building works or streets works without having first obtained from the Building Authority-

(a) his approval in writing of documents submitted to him in accordance with the regulations; and

(b) his consent in writing for the commencement of the buildings works or street works shown in the approved plan.

5.Section 40(1AA) of the BO reads:

“Any person who knowingly contravenes section 14(1) in respect of building works (other than minor works) or street works shall be guilty of an offence and shall be liable on conviction-

(a) to a fine of $400000 and to imprisonment for 2 years; and

(b) to a fine of $20000 for each day during which it is proved to the satisfaction of the court that the offence has continued.

6.In respect of summons KCS 4909/2013, D2 was charged that on 22 January 2007, being the authorized person (AP)directly concerned with the building works at No 7 York Road, knowingly misrepresented a material fact in the Form BA13 given to the Building Authority, namely that the new building at the said location had been erected in accordance with the plans approved by the Building Authority. 

7.In respect of summons KCS 4910/2013, D3 was charged that on 22 January 2007, being the registered structural engineer (RSE) directly concerned with the building works at No 7 York Road, knowingly misrepresented a material fact in the Form BA13 given to the Building Authority, namely that the new building at the said location had been erected in accordance with the plans approved by the Building Authority. 

8.In respect of summons KCS 4911/2013, D4 was charged that on 22 January 2007, being the registered general building contractor (RGBC) directly concerned with the building works at No 7 York Road, knowingly misrepresented a material fact in the Form BA13 given to the Building Authority, namely that the new building at the said location had been erected in accordance with the provisions of the Building Ordinance and Regulations.

9.The above 2^nd set of summonses were offence contrary to section 40(2A)(c) of the BO, which reads:

“(2A) Any person for whom any prescribed inspection or building works or street works are being carried out and any authorized person, registered structural engineer, registered geotechnical engineer, registered inspector, qualified person, registered general building contractor, registered specialist contractor or registered minor works contractor directly concerned with any such inspection or works who-

(c) knowingly misrepresents a material fact in any plan, certificate, form, report, notice or other document given to the Building Authority under this Ordinance, shall be guilty of an offence and shall be liable on conviction-

(d) in the case of a prescribed inspection … or building works … or street works, to a fine of $1000000 and to imprisonment for 3 years; or

(e) in the case of a prescribed inspection in respect of window in a building or minor works, to a fine of $500000 and to imprisonment for 18 months.

10.It is clear from the way the 1^st set of summonses was presented that in the specified period between 26 August 2005 and 22 January 2007, it is the prosecution case that D2 to D4 “knowingly permitted” the commencement or carrying out of the construction of 2 items of unauthorized building works (UBWs), ie the upper portion of a basement (also frequently referred to at trial as upper hanger wall at the lower ground floor (UHW)), with two skylight openings (SLO).

11.It is also apparent from the way the 2^nd set of summonses was presented that on 22 January 2007, D2 to D4 being in the respective capacity as the AP, the RSE and the RGBC directly concerned with the building works at 7YR, knowingly misrepresented a material fact in the Form BA13 given to the Building Authority, namely that the new building at the said location had been erected in accordance with the plans approved by the Building Authority or had been erected in accordance with the provisions of the Building Ordinance and Regulations.

12.Both sets of charges mention a material date i.e. 22 January 2007 because that was the day D2 to D4 signed the prescribed Form BA13, which contains the relevant declaration of compliance for the purpose of applying for an occupation permit (OP), which was subsequently issued by the Buildings Department (BD) on 2 February 2007. 

Issues

13.Thus crucial to the court’s adjudication of the innocence or guilt of D2 to D4 is a determination of when the alleged UBWs ie UHW (upper hanger wall at the basement) and SLO (2 skylight openings at the bottom of the swimming pool) were commenced or carried out, in particular whether the alleged UBWs were commenced or carried out before the OP.   Other interlocking issues are (i) whether UHW and SLO are UBWs; (ii) whether each of the defendants in their respective professional capacity had guilty knowledge, hence legally responsible for those UBWs so as to create criminal liability for them.   

14.There are subsidiary questions arising from the main issues that I shall analyse in the subsequent paragraphs, such as (i) in the light of the fact that PW2 was the original RSE whose service was terminated in 2003, whether PW2’s evidence in respect of the meetings with D2 in 2002 and 2003 should be accepted and showed that D2 had the intention as early as in 2002 or 2003 to build a basement at 7YR pre OP or post OP; (ii) in the light of the fact that at least 3 groups of relevant personnel did not discover any signs of UBWs before the OP, whether and to what extent this casts doubt on the prosecution case that the UBWs were in place before OP.  Those 3 groups of relevant personnel include the site representatives of D2 and D3 known as Technically Competent Person (TCP); the BD’s officers in Site Monitoring Section (SMS); and the BD’s staffs who conducted site visit for the purpose of issuing the OP.  The evidence of Ko Kiu Kin Keith (PW3), Chow Ka Lok (PW4) and Chan Bing Wing Henry (PW5) are relevant on this aspect. 

15.In essence, however, both the prosecution and the defence accepted that there is only one most important issue that is decisive on the innocence and guilt of the defendants: has the prosecution proved beyond reasonable doubt that the UHW and the SLO were constructed before the OP?  In this case, there is no direct evidence or eye witness such as foreman or construction site workers (eg. formworks workers, concrete pouring workers, steel bars workers etc) who might have taken part in the construction of the UHW or the SLO or whose testimonies may shed light on how and when the alleged UBWs were constructed.  As it will be elaborated in detail hereinafter, the whole prosecution case is founded on certain circumstantial evidence, most of the evidence came from the investigations conducted in 2012.  The court is invited to draw inference on those circumstantial evidence as interpreted by the prosecution’s experts.  The experts also referred to various plans, photographs and the test in the laboratory on some concrete core samples, in order to suggest that the alleged UBWs were constructed pre OP.   In contrast, the experts called by D2 and D3 suggested that the alleged UBWs were constructed post OP or their evidence, as the defence suggested, at least cast doubt on the construction theories as expounded by the prosecution’s experts.   This main issue is clearly joined through the expert evidence.       

The Factual Background

16.In order to understand the basis of the prosecution case, the expert evidence and to what extent the evidence as found can or cannot be supportive of the prosecution case, I shall set out the factual background. The factual background is founded on the basis of 2 sets of detailed admitted facts, the clarifications in the course of the trial and on what I understand from the closing submissions which further crystallized or watered down the issues after hearing live evidence.   

Capacity of D2, D3, D4

17.At all material times, D2 was an AP pursuant to section 3 of the BO.  D3 was a RSE pursuant to section 3 of the BO and D4 was a RGBC pursuant to section 8A of the BO.

Ownership of 7YR

18.At all material times, On-Power Limited (“On-Power”), a company incorporated in the British Virgin Islands, was the registered owner of the Property at 7YR.  D1 (Ms Lisa Kuo) has been a director of On-Power since the 27^th May 2002.  On the 17^th June 2002, On-Power purchased the property at 7YR and D1 signed the Deed of Assignment as an authorized signatory of On-Power.   

Preparatory works in 2002 and 2003

19.On 7 December 2002, D2 submitted a letter to the Building Authority (BA) enclosing, amongst other things, a Form BA4 and Form BA5 notifying the BA that the Company intended to carry out building works at 7YR and appointed D2 as the authorized person (AP) and coordinator in respect of the building works.  In the Form BA4, D1 was nominated as the authorized agent of the Company and she signed it for and on behalf of the Company.

The appointment of original RSE - Tang Wai Chau, Chezy (PW2)

20.By a letter dated 21 January 2003, D2 submitted a Form BA4 dated 21 January 2003 to the BA, notifying the BA that Tang Wai Chau, Chezy (PW2) was appointed as RSE for the building works at 7YR.  As an authorized agent of the owner On-Power, D1 signed the Form BA4.[1]

21.On 10 July 2003, D2 sent by way of facsimile transmission a set of plans (with a marked-up plan of a basement) to Norman Chan (a designer appointed by D1) which was also copied to D1, PW2 and Derek Ho (a director of an electrical and mechanical consultant company) for further comment.  D2 requested PW2 and Derek Ho to propose the structural, electrical and mechanical incorporation to the plans.  

22.On 1 August 2003, PW2 submitted a set of foundation plans to the BA for approval.  The materials submitted by PW2 included a Ground Investigation Fieldwork Report and a Ground Investigation Testing Report (two sets).

23.On 28 August 2003, D2 sent by way of facsimile transmission an agenda for the project meeting to be held on 1 September 2003 to D1, PW2, Norman Chan and Derek Ho.

24.On 1 September 2003, D1, D2, PW2 and Norman Chan attended the project meeting. 

25.On 9 September 2003, PW2 received a phone call from D1, who said that she understood the position of PW2 and told him that she intended to appoint another RSE and requested that he withdraw the submitted foundation plans.  PW2 submitted a letter to the BA on the same day withdrawing his foundation plans submitted on 1 August 2003.

Change of RSE – D3

26.On 16 September 2003, PW2 submitted a letter to the BA notifying his resignation as RSE for the building works at 7YR with effect from 17 September 2003.

27.On 19 September 2003, D2 submitted a letter, enclosing a Form BA4 and a Form BA5.  The Form BA4, signed by D1, D2 and D3, sought to notify the BA that D3 was appointed the new RSE for the development of 7YR.  The Form BA5 sought approval of building plans from the BA.[2]

28.On 9 October 2003, 17 February 2004 and 27 April 2004, D3 submitted letters to the BA enclosing a Form BA5 foundation plans for approval. 

Building Plans

29.D2 had submitted letters on 3 main occasions, 7 December 2002, 6 June 2003 and 14 August 2006[3], enclosing building plans for the Building Authority’s (BA) approval.  The BA granted the respective approval on 28^th January 2003, 25^th June 2003 and 8^th September 2006.[4]  

Foundation Plans

30.On diver dates between 9 October 2003 and 9 October 2006, D3 submitted letters enclosing foundation plans for the BA’s approval.[5] The BA granted the respective approval between 2 December 2003 and 2 November 2006.[6]

Structural (Superstructure) Plans

31.D3 submitted structural (superstructure) plans to the BA for approval on 18 March 2004, 24 March 2004, 7 November 2005, 13 April 2006, 13 June 2006,  12 September 2006, 13 September 2006, 16 October 2006 and 31 October 2006.   The BA approved the structural (superstructure) plans on 27 April 2004, 5 January 2006, 10 May 2006, 4 July 2006, 9 October 2006, 7 November 2006, 9 November 2006, 27 November 2006 and  8 December 2006 respectively.  No basement including the UHW or SLO at the bottom of the swimming pool was indicated on the building plans and structural plans approved by the BA.

32.The Form BD103 sets out the dates of consent given by the BA to the commencement and carrying out of building works at 7YR.[7]

Structural Engineer Wai Sai Chong

33.From 25 June to the 28 June 2004, Structural Engineer Wai Sai-chong temporarily acted for D3 as RSE for supervision of the plate load test.

Registered General Building Contractor (RGBC)

34.On 31 August 2004, D2 submitted a letter, enclosing a Form BA10[8], notifying the BA that Kwong Key Construction and Engineering Limited (“Kwong Key”) had been appointed as the Registered General Building Contractor (“RGBC”) for the superstructure works at 7YR.  In this Form BA10 which was signed by D2, D2 informed the BA that the said superstructure works would be commenced on 7 September 2004. 

35.On 12 August 2005, D2 submitted to the BA a letter, enclosed with a Form BA10, a Form BA11, the Site Safety Supervision Plan and other documents.[9]

36.In the Form BA11 of Exhibit P16, which was signed by D2 and Kwong Key’s representative :

(i) the BA was notified that, with effect from 11 August 2005, Kwong Key had ceased to be appointed as the RGBC for the building works at 7YR; and

(ii) Kwong Key certified that the following building works had been carried out by Kwong Key in accordance with the provisions of the Buildings Ordinance and Regulations –

- Columns C1 to C16 from Foundation to LG/F;

- Fence Walls up to level 17.15mPD;

- Grease interceptor structure.

37.In the Form BA10 of Exhibit P16, which was signed by D2 and D4’s representative, the BA was informed that D4 had been appointed as the RGBC for the superstructure works at 7YR, and that the superstructure works would be commenced on 26 August 2005.

38.The Form BA11 of Exhibit P16 had not been fully completed.  On 19 August 2005, D2, upon the BA’s request, submitted a letter to the BA, enclosing a duly-signed and completed Form BA11[10]. This Form BA11 was in substance identical to the Form BA11 of Exhibit P16.

39.On 24 August 2005, D2 submitted a letter to the BA, enclosing two pages of Record Photographs.[11]

40.On 6 February 2006, D2 submitted a letter to the BA, enclosing a revised Site Safety Supervision Plan (“SSSP”).[12]

Occupation Permit

41.On 17 January 2007, D2 submitted a letter, enclosing a new Form BA4 (and other documents), which confirmed the ownership of 7YR.[13]

42.On 22 January 2007, D2 submitted a letter to the BA, reporting that the construction of the building at 7YR was completed and applying for Occupation Permit.  Enclosed in the letter was, amongst other documents, a Form BA13.[14]

43.In the Form BA13 (dated 22 January 2007) of Exhibit P20 :

(a) D2 signed as the AP, certified that the new building at 7YR had been erected in accordance with the plans approved by the Building Authority (reference number 2/4041/02) and was structurally safe.

(b) D3 signed as the RSE, certified that the new building at 7YR had been erected in accordance with the plans (reference number BD 3/4041/02) approved by the Building Authority and was structurally safe.

(c) D4 signed as RGBC, certified that the new building at 7YR had been completed on 22 January 2007 and erected in accordance with the provisions of the Buildings Ordinance and Regulations.

44.On 24 January 2007, BD’s officers, including Building Surveyor Chan Bing Wing Henry (PW5), conducted an OP inspection at 7YR for the purpose of considering whether OP should be granted.  In the presence of PW5, 58 photographs were taken.[15]

45.On 2 February 2007, the BA issued an OP numbered KN 4/2007(OP) to On-Power, owner of the property at 7YR.[16]

Plot Ratio

46.Between February 2012 and December 2012, site measurements were carried out by BD officers (Chik Shu Hung, Principal Survey Officer (Building) ; Lau Wa Kit, Survey Officer ; Li Kit Chi, Survey Officer ; Mak Hang Lam, Building Surveyor (PW7); Ng Wun Yin, Building Surveyor ; Ma Ho Wai August, Building Surveyor (PW1) at 7YR.

47.The site area of 7YR is 569.4027 meter square. Pursuant to the Outline Zoning Plan made under the Town Planning Ordinance, Cap. 131, the permissible plot ratio of the site is 0.6, and the permissible Gross Floor Area of the site is 341.6416 meter square. 

48.Pursuant to the Building Plan submitted by D2 on 14 August 2006 (Exhibit P23 –Drawing No. AR-GP-06 B), the actual Gross Floor Area approved for the development at 7YR was 341.415 meter square i.e. within the permissible Gross Floor Area of 341.6416 meter square. 

49.Further site measurements were carried out and revealed in the year of 2012 that the measurement of the basement was 19.9 metres (length) x 12.2 metres (width) x 2.5 to 4.7 metres (height).  By constructing the basement, the plot ratio of 7YR had increased beyond the permitted plot ratio of 0.6 under the Outline Zoning Plans restriction by 70 per cent.

Aerial Photographs

50.Lee Kwok Leung, Senior Land Surveyor of the Survey and Mapping Office, Lands Department, confirm that the aerial photographs produced are true copies of the record kept by the Lands Department.  Those photographs capture the property at 7YR and the vicinity on the dates between 24 October 2005 and 16 November 2011[17].

BD Inspections

51.The inspections mentioned in the subsequent paragraphs were carried out by BD officers in the Site Monitoring Section (SMS) pursuant to their duties set out in Practice Notes for APs, RSEs and Registered Geotechnical Engineers (issued by BD) ADM-13.[18] It is the latest Practice Notes for APs, RSEs and Registered Geotechnical Engineers.  However, at the material times (from 26 August 2005 to 22 January 2007), the applicable Practice Notes were the older versions issued in October 1995[19]  and February 2006[20].

52.On 3 March 2003, BD officers (Structural Engineer Wong Tim and Technical Officer Chung Kai-wah) conducted inspection at 7YR.

53.On 11 November 2003, BD officer (Structural Engineer Lok Pui-fai of New Building Division 2) conducted inspection at 7YR.

54.On 21 April 2004, BD officers (Structural Engineer Wong Po-suen and Technical Officer Chung Kai-wah) conducted inspection at 7YR.

55.On 18 June 2004, BD officers (Building Surveyor Lee Kin-yee and Survey Officer H.Y. Chau) conducted inspection at 7YR.

56.On 24 August 2004, BD officer (Building Surveyor Chan Miu-ling of New Building Division 1) conducted inspection at 7YR.

57.On 1 September 2004, BD officers (Structural Engineer Wong Po-suen and Technical Officer Chung Kai-wah) conducted inspection at 7YR.

58.On 8 November 2004, BD officers (Building Surveyor Lee Kin-yee and Survey Officer Lo Yat-yin) conducted inspection at 7YR.  On that day, no works were in progress.  No safety issue was noticed.  Photographs were taken by Lo Yat-yin.[21]

59.On 5 September 2005, BD officers (Building Surveyor Lee Kin-yee and Survey Officer Lo Yat-yin) conducted inspection at 7YR.  On that day, works on the superstructure were being carried out.  No safety issue was noticed.  Photographs were taken by Lo Yat-yin.[22]

60.On 22 November 2005, BD officers (Structural Engineer Wong Po-suen and Technical Officer Fung Wing-wah) conducted inspection at 7YR.  On that day, the superstructure works from the Upper Ground Floor to the First Floor were being carried out.  

61.On 11 January 2006, BD officers (Building Surveyor Lee Kin-yee and Survey Officer Lo Yat-yin) conducted inspection at 7YR.  No safety issue was noticed. 

62.On 23 March 2006, BD officers (Structural Engineer Wong Po-suen and Technical Officer Fung Wing-wah) conducted inspection at 7YR.  On that day, the superstructure works of the First Floor were being carried out.  No safety issue was noticed.

63.On 19 April 2006, BD officers (Building Surveyor Lee Kin-yee and Survey Officer Lo Yat-yin) conducted inspection at 7YR. No safety issue was noticed. 

64.On 22 May 2006, BD officers (Structural Engineer Wong Tim and Technical Officer Tang Chun-wan) conducted inspection at 7YR.

65.On 22 June 2006, BD officers (Structural Engineer Wong Po-suen and Technical Officer Fung Wing-wah) conducted inspection at 7YR.  No safety issue was noticed.

66.On 11 October 2006, BD officers (Building Surveyor Lee Kin-yee and Survey Officer Tse Wai-kuen) conducted inspection in respect of site safety, site supervision records and scaffolding safety at 7YR.  No issue was noticed.

67.On 2 November 2006, BD officers (Structural Engineer Li Mun and Technical Officer Tang Pui-king) conducted inspection at 7YR.  They had checked, amongst others, the dimension of three columns between the First Floor and the Roof to see if there was any non-compliance with the approved plans. No non-compliance was noticed.

68.On 14 November 2006, BD officers (Structural Engineer Wong Po-suen and Technical Officer Fung Wing-wah) conducted inspection at 7YR.  At that time, the superstructure of the building had been completed and renovation work was underway.  No issue was noticed.

69.On 3 January 2007, BD officers (Building Surveyor Lee Kin-yee and Survey Officer Tse Wai-kuen) conducted inspection in respect of site safety, site supervision records and scaffolding safety at 7YR.  No safety issue was noticed. 

70.During the inspections mentioned in previous paragraphs, none of the BD officers noticed any unauthorized building works or any non-compliance with the Buildings Ordinance and regulations or the approved plans.   

Labour Department Inspections

71.For the period between January 2003 and December 2011, Occupational Safety Officers of the Labour Department had conducted a total of twelve safety inspections at 7YR.  The dates of inspections were 8 September 2005, 13 March 2006, 26 April 2006, 14 June 2006, 3 August 2006, 12 September 2006, 27 February 2007, 29 May 2007, 28 April 2009, 19 May 2009, 16 March 2010 and 24 May 2011.

72.Photographs were taken only on one inspection i.e. 28 April 2009.  Eight photographs were taken by the Occupational Safety Officers Chan Lin-ching and Lam Sau-ching[23].  During the said inspection, Occupational Safety Officer Chan Lin-ching did not see any basement at 7YR. 

73.Occupational Safety Officer Chan Lin-ching had checked the inspection minutes prepared by her colleagues in relation to the other eleven inspections at 7YR.  She confirmed that there was no mention of any basement in those minutes.

BD’s Investigations

74.On 16 February 2012, Acting Senior Building Surveyor Ko Kiu Kin Keith (PW3) and his colleagues of the BD conducted an on-site investigations at 7YR. PW3 and his team members then prepared an Inspection Report, which enclosed marked plans and 28 photographs depicting the inside and outside of the building at 7YR.[24]

75.From April to December 2012, further investigative works were conducted at 7YR.  The works included, but not limited to, opening-ups, concrete coring and taking of measurements.  Those works were carried out by the workers of BD’s contractor.  BD officers, including Building Surveyor Mak Hang Lam (PW7) and Structural Engineer Lam Chi Ming (PW6), had conducted site inspections and taken photographs at 7YR.  Site plans were also drawn by BD officers.[25]

Core Samples S1-S8 and S11

76.On 1 November 2012, the workers of the BD's contractors extracted 6 core samples S1-S6 at the site of 7YR near the area of the 2 skylight openings (SLO) at the Lower Ground Floor ("LGF ") slab underneath the swimming pool.   These 6 core samples were then handled by BD officers who subsequently conveyed them to the FT Laboratories Limited (FT Lab) on the same day. On 8 November 2012, two further core samples S7 and S8 were extracted near the area of the 2 skylight openings (SLO) at the LGF slab underneath the swimming pool.  These two core samples were then conveyed to the FT Lab on the same day. 

77.On 6 December 2012, the said core samples S1-S8 were returned to BD officers by the FT Laboratories Limited. These core samples were then kept in safe custody of BD officers.   

78.On 3 December 2012, at the site of 7YR, core sample S11 was extracted from the LGF slab underneath the swimming pool for visual inspection by a BD officer (Building Surveyor Mak Hang-lam PW7).  The core sample S11 was then properly kept in safe custody of BD officers. On 7 December 2012, a BD officerMa Ho-wai (PW1) delivered core samples S2 and S11 to Professor Li Zongjin (PW10) for inspection. 

79.FT Lab was engaged to conduct the Dynamic Modulus Test (DMT) on the core samples as instructed and guided by the prosecution expert (Professor Li/PW10) using a methodology known as ASTM and academic paper known as ACI.  The purpose of DMT was intended to establish whether the concrete core samples revealed micro cracks or fractures which would indicate whether the core had been taken from a situation which had been subject to the type of percussive forces.  Such forces would be expected to accompany the use of hammering or cutting equipment which could be needed to cut an opening into an existing concrete slab.  This part of evidence was prepared by the prosecution in support of the suggestion that the particular slab with SLO was made by one single concreting pour, instead of making the slab first and then opened up the 2 holes with forces. 

D2’s Cautioned Interview

80.Between 2:10 pm and 6:55 pm on 29 February 2012, Chiang Chi Man (Senior Building Surveyor of the BD), together with his colleagues, conducted a cautioned interview with D2.  The interview was attended by D2 voluntarily and in the presence of his legal representatives.[26]   It has no significance on the issues herein.

D3’s background and clear record of D2-D4

81.D3 commenced his professional career with the then Architectural Office, Public Works Department (now Architectural Services Department) of the Hong Kong Government in 1958, until 1976 when he joined the Buildings Ordinance Office (now Buildings Department). He was made the Chief Structural Engineer in 1977. In 1980 he left the Buildings Ordinance Office to set up his consultancy practice, Wong Pak Lam & Associates.  

82.D2, D3 and D4 have clear record.

The Trial

Gist of the Prosecution Case

83.The prosecution case consisted of 9 factual witnesses and 3 expert witnesses: PW1 Ma Ho Wai August, PW2 Tang Wai Chau Chezy, PW3 Ko Kiu Kin Keith, PW4 Chow Ka Lok, PW5 Chan Bing Wing Henry, PW6 Lam Chi Ming, PW7 Mak Hang Lam, PW8 Lai Shu Hung Peter, PW9 Quieta, Nina Cunanan, PW10 Li Zongjin (expert), PW11 Chiong Kam Yeung Jacky (expert) and PW12 Yu Tak Cheung (expert).

84.“The Factual Background” above are admitted or not challenged.   No issue of credibility or reliability is taken on factual witnesses except PW2 and PW4.  Regarding PW2, D2 took issue of his credibility and reliability.  Regarding PW4, the prosecution intended to discredit his testimonies.  In brief, the prosecution called PW2 to testify on the discussion with D2 in about 2002 and 2003, including the building of a basement. It is noted that the contemporaneous document also states the discussion of construction of a basement at 7YR post OP.   PW4 was called by the prosecution but the prosecution was of the views that he, being the then technically competent person (TCP) employed by D3 in respect of 7YR, he lacked enthusiasm to check the compliance of site works with the plans and the building laws in or about October 2005.  As a result, his testimonies of not noticing any signs of construction of UHW should be in doubt, as said by the prosecution. 

85.BD’s staffs PW3, PW5 to PW6 whose evidence are not in serious challenge but their evidence are considered by the defence as relevant to establish that at the material times, different teams of BD’s officers did not notice any sign of UBWs or any breach of the building law and regulations at 7YR during site inspections before the OP.  Therefore, the defence suggested that this cast a great doubt on the prosecution case in that had there been any signs of constructing UBWs, they would not have escaped the attention of different sections of building inspectors.   The defence submitted that it also tallied with their experts’ suggestions that the UBWs were not built before the OP, but after the OP.  The evidence of PW8 and PW9, the laboratory’s responsible officers are considered by the defence as crucial to establish that the experiment or tests on concrete core samples (known as Dynamic Modulus Test (DMT)) were unsuccessful and affected the reliability of the analysis of the prosecution’s concrete expert PW10 (Professor Li).   

86.Regarding expert witnesses, the prosecution relied on their evidence to suggest that many of the features at 7YR revealed by BD’s investigations in about 2012 show that the alleged UBWs (ie upper hanger walls and 2 skylight openings) in question were commenced or carried out before the OP. To further clarify that it is not necessary for the prosecution to prove the basement existed before the OP, Mr Oderberg, counsel on fiat stressed in the opening that:

“… but we say that the existence of the basement itself is not absolutely essential for the prosecution to establish each of these two charges. We say that it’s enough aside from the independent breaching and contravention nature of these window – the lights [skylights] (SLO) and the hanger walls (UHW), it’s enough that they [D2-D4] commenced on a course which was intended to be completed by way of the construction of a room which we say was the basement.”

87.Three prosecution’s expert witnesses, namely a Professor in the Department of Civil and Environmental Engineering of the Hong Kong University of Science and Technology, Li Zongjin (PW10); a Senior Structural Engineer of the BD, Chiong Kam Yeung Jacky (PW11); and an Acting Assistant Director of the BD, Yu Tak Cheung (PW12) have been engaged in the case.  In gist, Professor Li and Mr Chiong are of the opinion that at least part of the construction works which formed the upper portion of the basement walls (UHW) and SLO had been carried out and completed before the issuance of the OP on 2 February 2007.  Professor Li also stated that the upper part of the basement construction before the OP would serve no other functions than basement walls.  They are also of the opinion that the lower part of the basement measuring at approximately 1.5 metres, were connected to the UHW subsequently.    Mr Yu (PW12) said that had there been application to the BA seeking approval of the construction of UHW and SLO, the BA would not have approved the application.  As the evidence of Professor Li and Mr Chiong are crucial, I shall analyse their evidence in detail.

Defence case and Witnesses

88.There is no submission of no case to answer on the part of D2 to D4, I found that there is case to answer in respect of each of the summonses.

89.D2 to D4 did not give evidence nor they call any factual witness.   D2 called Dr Sammy Chan (DW1) as their expert witness while D3 called Dr James Lau (DW2) as their expert witness.   Apart from the main issue, the defendants also contended the lack of knowledge on the existence of UBWs, if any.

Statement of Findings

Factual witnesses

90.As said before, D2 took issue of PW2’s credibility and reliability while the prosecution sought to discredit PW4.  I also need to mention briefly a few more factual witnesses whose evidence were referred to by both parties in the closing submissions.   In arriving at the factual findings, I have considered all the testimonies and documentary evidence.  I also observed their demeanour and their attitude in the course of giving evidence. However, I would only set out the necessary particulars which are material to the determination of the main issues and the subsidiary questions.

Chezy Tang Wai-chau (PW2)

91.D2 took issue of his credibility and reliability.  PW2’s involvement was as a consultant to the proposed 7YR project and he was first approached by D1, Ms Lisa Kuo (the agent of the corporate owner) in 2002 with a view to his services being engaged as the Registered Structural Engineer (RSE) as required by the BO. His consultancy proposal was accepted by D1 by signature on 14January 2003.

92.He attended his first meeting concerning the project on the 19 December 2002 having sent his first proposal for consultancy to the owner on 30 December 2002 (prior to his appointment as RSE). That document referred to a building proposal with a basement and one without after OP in the context of PW2’s contractual obligations and remuneration.

93.Having submitted the proposal and quotation for the works, he saw a number of approved plans under the denomination AP-GP-01 to 06[27]. He first saw these plans in early 2003. These plans did not include provision for a basement or SLO or windows in the pool or the slab under the pool.  In May 2003 he was told by D2 that there was an amended set of plans but the witness noted that there was no reference in those plans to a basement of SLO.

94.On 10 July 2003, PW2 received letter by fax[28] from D2 which included 3 plans with references to a basement or stairs but these were referred to as being proposed for completion after the issuance of the OP. 

95.A further meeting was held on 1 September 2003 following a faxed document from D2[29]. PW2 was of the view that the Gross Floor Area requirements (GFA) applicable to the building plot would be breached by the inclusion of the proposed basement. When the witness raised some of his concerns with D2 on 1 September 2003, D2 told him that he would “build it anyway”.

96.PW2 deposed that at that meeting (1 September 2003), D2 for the first time mentioned the building of a basement at the same time as the footings for the foundations. D2 referred to the installation of ties beams to connect the footings together for that purpose. He further told PW2 to make sure that the necessary reinforcement bars (re-bars) for the additional works were procured and kept on the site. PW2 also stated in cross-examination by counsel for D2 that D2 also mentioned pre-OP hanger wall at the same meeting.  D1 attended this and the earlier meetings and after the meeting of 1 September 2003 she told PW2 that she wanted to think over his attitude as expressed at the meeting.

97.On the evening of 9 September 2003 D1 informed PW2 that she understood his stance but that she had decided to replace him as RSE and asked him to withdraw a set of plans which he had submitted to the Buildings Department (BD) on 1 August 2003. PW 2 complied, accepted the owner’s decision and withdrew with notification to the BD.

98.D2’s counsel submitted that PW2 was incredible and unreliable.  Firstly, because of the argument in the meeting on 1 September 2003 between PW2, D1 and D2 on whether to build a basement that led to subsequent termination of his services by D1, PW2 tended to exaggerate his evidence and purported to create an impression about the early intention of D1 and D2 to build a basement at 7YR pre OP.  Besides, PW2 was not consistent on the time when he first came to know D2’s idea of building a basement.  At first, he said he first came to know that idea on or about 10 July 2003.  After he was shown a fax covering sheet dated 30 December 2002 prepared by himself, he agreed that the material time should be December 2002.

99.In my views, I see no sufficient grounds to say PW2 is incredible or dishonest. However, although I found him as an honest witness, his evidence is unreliable.  In the meeting on 1 September 2003, he raised objection to the construction of basement because it would be in breach of the plot ratio and would be illegal.   It seems that his main position on whether or not the proposed construction of basement is pre-OP or post-OP is unacceptable to him because it would exceed the plot ratio.  However, his earlier fax dated 30 December 2002 to D1[30] seemed to suggest 2 alternative consultancy fee proposals with or without basement.    It is stated therein: “The attached fee proposal is up to OP stage, After OP, our fee is of extra, HK$70,000 if basement is constructed; HK$40,000 if no basement is constructed.”  His oral testimonies seemed to suggest that he opted to take moral high road by distancing off any idea of building of a basement.   However, his document seemed to suggest that building a basement after OP was acceptable to him.  He quoted extra consultancy fee for building a basement after OP.  It seems to me that he, as a RSE, should have been very alerted to any suggestion of “building a basement after OP” because it would raise one’s eyebrows as to whether it would be illegal despite it would be constructed after OP. 

100.Bearing in mind that he was asked to recall the details of the discussion some 9 years ago.  As to whether such discussion referred to building a basement before or after OP, it is unclear or there is at least an element of doubt.   But contemporaneous document did suggest that he quoted extra consultancy fee proposal for building a basement after OP.   I emphasized the words “after OP”, that indicated PW2 should have known the building must have been built in accordance with the plans as at the date of OP but there would be an additional basement thereafter.           

101.I find that PW2 is an honest but unreliable witness. Even if his evidence is accepted in its entirety, it is incumbent upon the prosecution to prove the UBWs were constructed before the OP.  Firstly, the discussion was a preliminary discussion of building a basement, more likely after OP.  There is nothing wrong in a client canvassing the viability of many options for the purpose of receiving professional advice before construction works are commenced.  Secondly, cogent evidence is still required to prove the UBWs were constructed before the OP no matter what the early intention was. 

Keith Ko Kiu-kin (PW3)

102.No issue is taken on his credibility.  He was one of the BD’s officers to examine the structure at 7YR on 16 February 2012.  A few more site visits thereafter revealed that apart from UBW, there were other unauthorized illegal or alteration works that were either completed or were on going at the site.  They include cantilevered out room at 1/F level, glass structure at the entrance of 7YR; the servant room at LG/F level (which was supposed to be the vehicle turntable), new staircase connecting UG/F to LG/F, roof skylight, connecting bridge to adjoining building at 1/F. It must be noted that the defence relied on his more discoveries to suggest that illegal works are more practically conducted and less risky to be conducted after OP than before OP.  

Chow Ka-lok (PW4)

103.The prosecution tried to discredit its own witness, PW4.  He was a Technically Competent Person (TCP) for the 7YR site from the end of 2005 to February 2006.  Under the statutory regime, AP, RSE or RGBC have to appoint sufficient number of qualified TCPs to give such supervision of construction works as may be required on each site. They must possess academicor professional qualifications or experience of building works or streetworks and satisfy the requirements set out in the BD’s document known as Technical Memorandum.  There are5 grades as defined in this Technical Memorandum.  The Building Authority has the power to reject or revoke the appointment of any person as a technically competent person if the Building Authority is not satisfied that the qualifications or experience of the person appointed are sufficient for him to carry out the duties required of him.

104.PW4 was an employee of D3 (WPL) from August 2001 until February 2006. At the same time, he was the TCP acting on behalf of D2. He believed that his superior in respect of 7YR was also employed by WPL.  He stated that although he had a schedule for visiting the site he was, at times, very busy and he might have departed from that schedule. He stated that he also attended site meetings because part of his duties was to co-ordinate the project. D2 also attended those site meetings and discussions.

105.In cross examination by D2, PW4 stated that depending upon the complexity of the project, site supervision might occur from once in a “few” weeks to once in a month.

106.By a document known as ‘Request for Inspection’ dated 26 October 2005, he was called upon by D4 (Hien Lee) through WPL to carry out an inspection of the site and, in particular, in respect of the reinforcement for the LG/F slab and beams[31], the concreting of which was stated to be carried out on 29 October 2005. The inspection was to be conducted on 27October 2005.

107.During the site visit on 27 October 2005, he did not notice any non-compliance from the approved building plans.  As such, he did not make any record of non-compliance. 

108.He went on to say that if rectification is necessary and could not be done immediately he would request the contractor to do the rectification and arrange another inspection and also mark the problem in the inspection book.

109.The prosecution tried to discredit PW4.  Mr Oderberg submitted that PW4 was not carrying out a full and genuine inspection but was rather simply “going through the motions”, in particular the inspection on 27 October 2005.  In his closing submission, the prosecution gave some examples:-

(§40)  “How could the Court accept Chow a competent and cautious TCP who had conducted proper inspection as TCP”

(§38)  “……when Chow said that during his inspection in 2005, there were no non-compliance, he was relying upon the incorrect plans. As a TCP, he could not even be armed with the correct approved plan.”

(§33)  “……when the witness stated in re-examination he admitted that he could not recall what he saw at the relevant time.”

110.Regarding the prosecution’s attack on PW4, in particular on being armed with an incorrect plan during inspection on 27 October 2005, I also note that the structural plan, which PW4 used for his inspection was not the 2004 plan nor was it the 2006 plan.  That was a plan, used in 2005, departed from 2004 approved plan but was similar to the version approved in 2006.  That plan showed the ‘dog leg’ at the swimming pool wall as rightly pointed out by the prosecution.  ‘Dog leg’ did not appear in the 2004 plan but appeared in the approved plan of 2006.  This kind of practice of departing from the original approved plan was supported by the practice note issued by the BD.   That would certainly be running the risk of being rejected.  However, it did not matter in the present case because it was finally approved as the 2006 plan.

111.My views are that the prosecution’s example on PW4’s use of incorrect plan was not substantiated, let alone he was less zealous in conducting the inspection.

112.I find PW4 as an honest witness but he is not a helpful witness in giving an account the details of his inspection.  It seems that due to lapse of time and dimming memory, he could only rely on the Request for Inspection to recall his memory about the details of inspection.  He did not discover any signs of building UHW is neither here or there.    

113.In my views, PW4, as a TCP, on one hand he was employed by D3, on the other hand, he owed a duty to the BD to ensure the works were in compliance with the BD regulations, his performance of his duties, depends very much on his own integrity.  His attitude or sincerity in checking non-compliance may not be as serious as the Site Monitoring Section of the BD or the BD’s officers who conducted inspection for the purpose of issuing OP.  However, on 27 October 2005, he was inspecting the lower ground structure, 2 days prior to concreting.  He did not see any unusual re-bars, formworks or deep trenches around the site (which are indicia of building hanger walls and there is no sufficient evidence to show the existence of those signs).  There is no sufficient basis to say the prosecution’s own witness turned blind eyes to those obvious indicia, if existed.  Had he turned blind eyes, those signs should not have escaped the attention of BD’s officers who conducted unannounced site visits with the frequency as stated in “the BD inspections” above.         

114.In contrast, the defence relied on his evidence to suggest that PW4 did not notice any signs of building and that should rebut any prosecution’s theory of pre OP UBWs.

115.It goes back to the basic. Can this Court be satisfied from the prosecution’s experts that the UBWs were built before the OP? 

Henry Chan Bing-wing (PW5)

116.No issue is taken on his credibility.  He is one of the BD’s officers who carried out pre-OP inspection on 24 January 2007.  From the admitted facts, a total of 58 photos were taken from that inspection.  He saw the swimming pool but he did not get into it to conduct any inspection there.  He further deposed that the LG/F matched the approved plans so he had no reason to seek to look under the slab.   In cross examination, he further confirmed that their team conducted inspection conscientiously.  No one stopped them from inspecting any other parts of the building and they were given free access to any part of the building.

Lam Chi-ming (PW6)

117.No issue is taken on his credibility nor was he called as an expert witness.  This witness is a structural engineer and was responsible for taking the photographs which appear in the prosecution bundles[32]. He attended the site on a number of occasions in 2012 and noted certain UBWs. He made considerable use of his observations, from the photographs and the models[33] to conclude that there were no visible construction joints (CJ) or irregular edges between the walls and the beams in the basement.

118.When examined concerning attempts to locate CJ he deposed that areas of concrete were removed to ascertain if there were “concealed” joints. He deposed that there were still no CJ revealed. He stated that he ensured that such work as was required to expose any CJ was undertaken.  In cross examination, he qualified the above general observation by saying that some areas in the basement were covered by decorating materials, air conditioning system or false ceiling.   

MAK Hang-lam  (PW 7)

119.No issue of credibility is taken on this witness.  He was an employee of BD and witnessed the taking of core samples and their secure preservation pending core dynamic modulus testing.

Peter LAI Shu-hung  (PW 8) and Nina Cunanan, Quieta (PW 9)

120.These witnesses may be conveniently dealt with together as they were involved in the carrying out the Dynamic Modulus Tests (DMT) under PW10’s instructions. Neither PW8 nor PW 9 have spoken highly of the detailed methodology employed under PW 10’s supervision.

121.They were called to give evidence on the actual conducting of the tests in the empirical sense.

122.Neither the prosecution nor the defence sought to have either of these witnesses qualified as an expert in the field of DMT as opposed to Professor Li who was demonstrably an expert on the topics of the principles, methodology and results interpretation of DMT measurement.  Professor Li relied on the test result to explain his theory.

123.In summary, having given my observations on PW2 and PW4, I find other factual witnesses as honest and reliable witnesses.

Expert witnesses

124.Although no issue is taken on the relevant expertise and the admissibility of all expert evidence, the parties’ advocates spent much time on examining their own experts in order to explain and elaborate many technical, construction and scientific concepts, theories, tests, examination and experiments.  They were also preoccupied in giving evidence on rebuttal, let alone the cross examination on many peripheral matters apart from the main issues.   Nonetheless, it does not alter the common ground that the ultimate issue on their evidence is one of weight to be attached to their reports and their oral testimonies in the context of whether the UBWs were constructed before the OP.   

125.It was clear from the outset of this trial that the evidence of the experts to be called would be all important.  Receiving, assessing and rejecting or accepting evidence from witnesses tendered as experts, either by the prosecution and/or the defence, in magistracy trials is commonplace.  I am aware of the requirements and limitations as to persons presented as experts and their testimony.  Out of an abundance of caution I reacquaint myself as to these matters from time to time and did so in the course of this trial.  The evidence of expert witnesses in this case included material which could be regarded as moving into the court’s province as to the ‘ultimate issue’.  This is a common feature of expert evidence in many cases, be the expert a witness for the prosecution or defence.  What is important is for the Court to remain well aware ‘ultimate issues’ are for the Court alone to pronounce upon.  Any evidence, ‘expert’ or not, is only received to provide assistance or foundation for the Court’s decision making, not to supplant it or otherwise intrude upon the Court’s function.  I was aware of this throughout and well knew the boundaries within which the evidence was confined.

126.Having said that, it is important to identify the reasons why each of those expert witnesses expressed the opinions they did and to consider whether they stand up to scrutiny.   I will consider each in turn.

Prosecution’s experts

PW10’s evidence (or Professor Li)

127.Professor Li is currently a professor in the Department of Civil and Environmental Engineering of the Hong Kong University of Science and Technology (HKUST).  He has a long list of professional qualifications, scholastic and intellectual experience and achievement.  He has also provided plenty of publications of text, papers and lectures on concreting materials. The prosecution described his expertise in concrete as follows:

“He has undoubtedly more experience both theoretical and practical in the area of concrete and particularly in respect of concrete’s composition and behavior in the context of structural elements of building fabrication.”

128.This is the first time he gave expert evidence in court.  Professor Li prepared 2 expert reports.  The 2^nd report was prepared in reply to the defence’s expert reports.  His reports[34] deal principally with both visual inspection and DMT in which he played a significant supervisory and instructive role.  The purpose of conducting DMT is to explore whether the concrete around the core samples has ever been subject to strong force, that may further explain whether the holes in a slab were cast at the same time or were opened by force thereafter by hacking or machine.  He visited 7YR on about 6 occasions in or about 2012 during which he also examined the basement at the premises.     

129.It is not necessary to set out in detail his reports in this verdict.  In so far as the main issue is concerned, in particular, one of the UBWs is UHW (also known as upper basement walls), Part III of his 1^st reports reads:

“III Conclusive Evidence Showing Upper Basement Walls Were Constructed with LG/F Structures before OP

1. It had been found that the upper part of basement walls were found constructed in the form of hanger walls connected with LG/F beams around the perimeter of the basement as shown in photo nos 9, 16 and 18 under A.   …. Visual inspection indicates no construction joint between hanger walls and the beams.  Further inspection by exposure of the reinforcing steel through removing of the concrete cover found that the reinforcement in the hanger walls were cast in the LG/F beams and the walls and beams were monolithic ….  It was conclusive that the hanger walls and LG/F beam had been constructed together and constructed at the same time.   There has been a clear construction joint between hanger wall and lower part of the basement wall.  The reinforcement details at this joint were found with typical lapping steel or starter bar details.  And the construction of the lower walls should be after the construction of the hanger walls.”

130.Reading the extracts above together with his elaborations in court, Professor Li expounded 3 main points: (i) the upper hanger walls at the basement was constructed at the same time of the LG/F slab.  That is because by virtue of visual inspection, there is no construction joint (CJ[35]) between the upper hanger walls and the beams.  In other words, the LG/F slab and the upper hanger walls (UHW) were constructed by way of monolithic concrete pour (one single pour); (ii) there is clear CJ between the upper hanger walls and the lower part of the basement.  They were constructed by way of separate concrete pour; (iii) further, the reinforcement details at this joint were found with typical lapping steel or starter bar details indicate that the lower part of the basement was constructed after the construction of the upper hanger wall.   I must note that Professor Li’s 3 main points are not disputed by the defence’s expert, Dr Lau (DW2).  However, Dr Lau said that despite such agreement, monolithic or one pour does not suggest when the relevant pour occurred.     

131.In so far as another UBWs is concerned, ie SLO at the bottom of the swimming pool, Professor Li stated in Part VI of his 1^st report:-

“[Para 1]… It has been found that the openings of the skylights of the swimming pool were made of preformed holes … .

[Para 2] The reinforcing steel positions showed an independent arrangement on both shorter sides of two skylight openings as shown in drawing no SP-3 of the photo and drawing record.  In the drawing, Face B and Face D were on the opposite sides of the larger sized rectangular-shaped skylight, it was clearly shown that two sides were never joined together, but with a hole in between at the time of concrete casting… .” 

132.In essence, Professor Li propounded that the openings at the swimming pool were created (apparently by using form works) at the same time of concrete casting of LG/F slab underneath the swimming pool by way of one pour.  He suggested that had the openings been created after LG/F slab concrete casting, it would have involved powerful tools such as pneumatic drill or compressed-air hammer to break a reinforced concrete slab and would have reduced the dynamic modulus of the concrete.  However, the DMT[36] conducted on the core samples S1, S3, S4 to S8 around the SLO and taken in 2012 suggested that there was no damage in the area of the edge of the openings.    

133.In part V of his 1^st report, he proposed the logical construction sequence as follows:-

“Despite the non-conclusive findings in IV, I offer my views from a logical construction sequence. I name the construction of hanger walls and swimming pool skylight openings as Stage I and the lower basement walls together with the basement slabs Stage II. From a logical sequence of construction, Stage II construction should have followed shortly after Stage I and before OP.

First, the construction of stage I realised re-excavation to about +15.0mPD. It would be more convenient to re-excavate the rest of the backfilled soil to the level of +12.5 mPD when the site is still under building construction rather than after occupation.

Second, if the Stage II works are after OP, the space between the hanger wall and sheet piles have to be backfilled from +15mPD for the construction of the terrace slabs (i.e. slabs around the building which have been approved as on-grade slabs) for OP inspection. Then after OP, such slabs have to be broken and excavated back all the way down to the foundation level for the construction of the lower basement wall. This redundant works seems illogical for the well planned construction sequence as evident.

Third, if the Stage II works are after OP, the very extensive re-excavation and concreting job not typical for household renovation or fitting-out can catch more attention on reporting of unauthorized building works. It is more risky.

Fourth, if the construction of the Stage II is after OP, the risk of constructing the hanger walls before OP are not justified as the basement wall can easily and more conveniently be constructed in whole by inserting the starter bars into both the underside of lower ground beam and the footing as shown in Figure 6 by drill-in methods. This one-off construction of basement wall after OP does not make any difference for the function of the basement wall constructed in this way compared with the 2-stage construction.

From the logical consideration of construction sequence, it can be inferred that the construction of stage II should be close to the completion of Stage I and finished before OP.”         

134.He concluded his 1^st report as follows:-

“1. I would like to point out that the construction of basement and skylights openings for swimming pool was a well-planned process at the design and construction stage. It is a fact that the extensive hanger walls forming a substantial part of the basement wall together with the first openings in the lower swimming pool slab for skylights are of monolithic construction with the lower ground floor structures. From the observation on site and logical construction sequence, they were constructed sometime in Oct 2005. After such construction, no backfill has been made as per the design shown in approved plans.

2. Though there were signs showing that the construction details of the opening have been modified after the first opening was formed, it is conclusive that a structural opening in the roof slab for the roof skylight was formed at the time of casting the roof slab and therefore before OP.

3. With the basement and skylight openings constructed, the on-grade turning table slab can easily be disguised by constructing a floating slab with the support in basement as shown in Figure 9 or 9a and the skylight openings of swimming pool be covered by simple phony and temporary constructions as shown in Figure 10 to mislead people for OP inspections so that they were not readily discovered at that time.

4. The LG/F structures forms the lowest part of the superstructure.  After the 3-storey building is completed and OP obtained, it is impractical to demolish the LG/F and rebuild such without demolishing the whole building.  I have a chance to look through the available aerial photos taken for the building during the concerned period.  There was no sign that the building had been demolished and rebuilt.  Therefore, the LG/F related basement structures were built before OP.

5. Basing on the logical sequence of construction works in the subject context, it is my view that the full construction of basement wall and related excavation should have been carried out before OP.”

135.Professor Li also deposed that the UBWs should be completed in the period between 10^th and 27^th October 2005.  That period is sometimes referred to as “12 working days”.

136.Professor Li’s 2^nd report contains his reasons of disagreement to the part of the construction theories raised by the defence experts.  He also reiterated that after the completion of the construction of the 3 storey building and the OP has been granted, it is impracticable to demolish the LG/F and rebuild the building in the state in 2012 without demolishing the whole building.

137.Pausing here, as more live expert evidence was heard during and after Professor Li’s testimonies, parties tended to contend more on this logical question, ie assuming what was discovered in 2012 suggested that the UHWs were constructed at the same time with the LG/F slab with 2 openings (which were further enlarged and modified into the state of skylight openings in 2012), the court is invited to apply common sense by taking into account such factors as (i) the comparison of level of risks of being discovered by the BD in carrying out UBWs before or after OP, (ii) the propensity of stakeholders (owner, professional AP, RSE, RGBC) to take such risks and the consequence before or after OP, (iii) the feasibility,  workability and the associated risks of building UBWs before the OP or by way of large scale demolition of original slab, excavation of soil after the OP and rebuilding the structure in the state of 2012.

PW11’s evidence (or Mr Chiong)

138.Mr Chiong, a Senior Structural Engineer of the BD, is a Registered Professional Engineer specialized in structural engineering.  He is a corporate member of the Institution of Structural Engineers since 1987.  He joined the BD in 1994 as a Structural Engineer.  He is currently responsible for control of design and construction of building and associated works under the BO.  In 2012, he was nominated to lead the investigation on the premises at 7YR and to provide independent advice.   This is the first time he gave expert evidence in court.

139.Mr Chiong carried out investigative inspections in the premises at 7YR from April to December 2012.  During those inspections, some of the false ceilings were removed. 

140.Mr Chiong has prepared two expert reports dated 6 March 2013[37] and 11 November 2013[38] respectively. 

141.The salient points of his 1^st report regarding UHW are as follows:-

“[Para 7] … . Details of the construction joints give clues to the way how the concerned structure is constructed and hence the time of its construction.”

“[Para 16] There is a conspicuous horizontal construction joint at +_15.3mpd along the unauthorized basement walls on the four sides of the basement. It is obvious that the unauthorized basement wall cast in two portions. Unlike the conventional bottom up construction, the upper portion was cast prior to the lower portion, as there are signs of cement slurry which had spread from the lower portion during its concreting onto the surface of the upper portion. It is obvious indication that concreting of the lower portion was carried out with the upper portion already cast in place…”

“[Para 17] The upper portion is monolithic with the approved lower ground floor structure. The junction between the unauthorized basement wall and the approved beam at its top is seamless which means that they were cast together at the same time. …”

“[Para 18] There are no noticeable construction joints at the underside of the lower ground floor structure as viewed from the basement. The possibility of its partial demolition after the OP application and then recast with the upper portion of the unauthorized basement wall should be ruled out. Based on the visual inspection, it is beyond reasonable doubt that the upper portion of the unauthorized basement wall should be cast together with the lower ground floor beams and slabs and the columns above +16.0mpd. In other words, the upper portion of the unauthorized basement wall should have been cast before the OP application.”

“[21] … “Drilled-in starter bars are also found at the construction joints between the lower portion of the unauthorized basement and the columns. However, the exact time of the construction of the lower portion of the unauthorized basement wall cannot be ascertained by the visual inspection.”

142.The salient points of his 1^st report regarding SLO are as follows:-

“[Para 27] “The approved [plans about] swimming pool base slab is 225 mm thick supported by the lower ground floor beams.  Spanning between the beams and under the swimming pool is another 150 mm thick lower ground floor slab. The gap between the 150 mm thick floor slab and the swimming pool base slab was filled up with concrete.  Apparently, the concrete fill was cast together with the lower ground floor slab.  The swimming pool base slab was cast separately as there is a construction joint between it and the concrete fill.  They have become the ceiling of the unauthorized basement.”

[Para 30] “The original slab openings were formed in the 150 mm thick lower ground floor slab with 20 mm diameter trimming bars near the edge of the opening, the arrangement of which is typical for slab openings. This indicates that the original opening was formed with a box-out and trimming bars fixed in the 150 mm thick lower ground floor slab before concreting. There are no construction joints in areas other than the vicinity of these slab openings. It follows that the original slab openings should be formed at the time of the construction of the 150 mm thick lower ground floor slab (i.e. before the OP application). However, the exact time of the change of the configuration of the slab openings cannot be ascertained by the visual inspection. …”

[Para 31] … It is impossible to change the configuration of the openings in the 150 mm thick lower ground floor slab with the swimming pool base slab cast on its top unless the swimming pool base slab was removed. However, the swimming pool base slab has not been opened up to a reasonable extent for inspection to ascertain if there are any construction joints. I cannot form a conclusive view on the possible time of the construction of this portion of the swimming pool base slab with the unauthorized openings in it. Nevertheless, judging from the finding that the construction of the unauthorized basement was planned in advance, it is very likely that the slab openings were formed in the swimming pool base slab at the time of the construction. Any subsequent changes of the configuration of the slab openings should involve partial demolition and recasting of the swimming pool. These modifications, if carried out improperly, may result in leakage of the swimming pool, which is undesirable from the design and maintenance points of view. It is therefore very likely that the extant slab openings in the swimming pool base slab for the unauthorized basement skylights were formed at the time of the construction before the OP application.”

143.He concluded in his 1^st report by saying “Based on the above findings, I am of the view that the upper portion of the unauthorized basement wall was cast together with the lower ground floor structure.  The 150 mm thick lower ground floor slab below the swimming pool was constructed with two unauthorized slab openings in it.  These UBWs were constructed before the OP application.”

144.Mr Chiong’s 2^nd report contains his rebuttal on the defence experts’ theory of partial demolition of LG/F slab and rebuilt with UBWs post OP.

145.Under cross examination, Mr Chiong fairly accepted that the views expressed by the defence experts (ie the impugned structures were put in place after OP) could not be excluded as possibilities.  His position of course, is that his construction sequence theory is more convincing. 

YU Tak-cheung (PW12)

146.Mr Yu is a Building Surveyor and a member of the Royal Institution of Chartered Surveyors and Hong Kong Institute of Surveyors.  Mr Yu joined the BD in 1985 and has been promoted to the rank of Acting Assistant Director.  In his almost 30 years of experience with the BD, Mr Yu has been working in different sections or divisions of the BD, dealing with various aspects of building works, including unauthorized building works, alteration and additions proposals, licensing, building control matters, etc.  Mr Yu stated that one of his expertise was the approval of plans:

“I am responsible for New Building Division (1), which was responsible for General Building Plan, Demolition Plan, Drainage Plans, Site Formation Plan. I am responsible for approving these plans. In approving those plans, I have to make sure that the plans have to comply with a number of things e.g. Code of Practice, Building Regulations, otherwise, they might be refused under s16 of the BO.”

147.Mr Yu has prepared two reports, the 1^st one is dated 8 March 2013[39] and the 2^nd report is dated 11 November 2013[40].  Mr Yu testified that, with the construction of a basement at 7YR, the plot ratio under the Outline Zoning Plan (OZP) had been exceeded.  He accepted that approval of plans involved exercise of discretion.  But he stressed that in the present case, he would have refused to approve the plans with the UBWs[41].

Defence experts

148.Although expert report of Dr Lam Siu Shu Eddie has been lodged with the court on behalf of D4 before trial, Mr Clive Crossman SC decided not to call Dr Lam in D4’s defence case.  Hence, unless otherwise stated, any comments or reference by other experts on Dr Lam can be put aside.  

D2’s expert (DW1 or Dr Sammy Chan)

149.Dr Chan is currently a managing director of Messrs. Wong & Cheng Consulting Engineers Ltd Hong Kong.  He has been a RSE since 2001. He has had the experience in planning, design, supervision and construction of a variety of structural, geotechnical and civil engineering works in Hong Kong, China, United Kingdom and South East Asia.  He is experienced in alternative design of civil structures and foundations, investigation and repair of slopes and building structures.  He has published more than 80 papers in major magazines and international conference.  He is a visiting professor of various universities in PRC and Europe.  He has been providing expert witness services to the construction industry and has given expert evidence in court on a number of occasions.

150.DW1 prepared one expert report[42]. In order to prepare his report, he inspected 7YR on 4 occasions between 24 June 2013 and 23 July 2013.  He also supervised structural break-out survey and dimension or level survey during the inspections.  His report covers 3 main points[43]:-

(a) The TCPs, especially PW4, the BD’s officers in the Site Monitoring Section (SMS), the BD’s officers responsible for OP inspection, did not discover any signs of UBWs or breach of the BO or building regulations during inspections before OP;

(b) The survey conducted at 7YR in 2013 revealed significant discrepancies found on the levels and arrangement of the existing structural members at LG/F indicated that the building structures at LG/F had been altered and re-constructed after OP because such discrepancies would have easily been discovered before the OP when the TCP or BD’s staffs inspected the erected reinforcement steel bars and formwork before casting of concrete to form the LG/F structures.  With such major alteration of structural shape and configuration, BD’s staffs would have noticed the irregular changes before the OP. However, after OP, TCP or BD staffs have effectively ceased their supervising and monitoring duties.   

(c) He proposed the theory of “post OP partial demolition of LG/F slab and rebuilt with UBWs thereafter” in 5 stages including these 4 main stages.  He presupposed that the whole building structure was completed and OP was issued in accordance with the approved plans: (i) sometime after OP, LG/F slab was demolished and reinforcement bars were exposed, (ii) LG/F beams with top layer being demolished; (iii) laying of new reinforcement bars connecting to the new hanger position; (iv) concrete pour to LG/F slab and beam.  As such, there would be no CJ between LG/F slab and upper hanger wall. 

151.He also spent much effort in his report to rebut the theories proposed by Professor Li and Mr Chiong.  

152.Dr Chan opined that it would have been impossible to complete the illegal structures in the period between 10^th and 27^th October 2005, as deposed by Professor Li. That period is sometimes referred to as “12 working days”.  He said it would take 5 to 6 weeks.  The process requires such works as (i) excavation of soil up to 15 mpd with about 650 -700 cubic meters of soil; (ii) removal of soil with volumn as much as about 100 trucks; (iii) associated works like soil trimming, leveling and compaction of formation of soil; laying of blinding concrete; erection of temporary propping and bracing; erection of formworks, fixing of steel bars and concreting at LG/F structure.  Further, those works must be accompanied with attendant and working noise, form works, reinforcement bars and deep trenches, which must have been obvious to any interested visitors such as BD’s officers.   

153.Though outspoken he was, DW1 said that had he been inclined to act illegally, he would have arranged a post-OP construction.    Firstly, there was no more supervision team from BD. Secondly, there was ample time for those who need to carry out the instruction to build a basement or SLO. 

D3’s expert (DW2 or Dr James Lau)

154.Dr Lau has over 40 years of experience in construction, design and research in the field of civil, geotechnical and structural engineering.  Before he returned to Hong Kong in 1977, he had spent 7 years in UK’s construction field.  In the same year, he obtained his PhD in geotechnical engineering from University of London, King’s College.  He has been and still remains an AP since 1983, as a RSE since 1982.  He is also a member of various construction related statutory boards.  He has given evidence in various courts and tribunals on matters concerning structure, foundation and geotechnical engineering.

155.Dr Lau has prepared 2 expert reports[44]. Having heard the evidence of Professor Li and Mr Chiong, Dr Lau prepared a supplementary report.  In the supplementary report, he spent much effort in listing the major differences between the 2004 plans and the 2006 plans on one hand, and the major difference between the 2006 plans and the features of 7YR as in 2012.  He said that such changes should result in a lot of additional joints in the structure of LG/F but BD investigators did not discover that in 2012 nor the prosecution commented on that.  Apart from giving rebuttal evidence, he also crystallized his opinions on the timing of the construction of the hanger walls.  As a preamble, he agreed with the prosecution’s experts that the LG/F edge beams and the UHW should be cast together.  The ultimate question is when?  

UHW

156.He gave 3 scenarios about the possible timing of the construction of LG/F floor slab, in particular the LG/F edge beams and the UHW.    The 1^st scenario is what is suggested by Professor Li, that is around 29 October 2005 when that was the time to pour concrete for the construction of LG/F.  However, Dr Lau said that Chow Ka Lok, the TCP/PW4 would have discovered such irregular works because those would be irregular and additional formwork and reinforcement for the hanger walls.  The 2^nd scenario is the construction of LG/F edge beams with UHW between 9 October 2006 and 13 November 2006 when the then plans suggested 9 out of 12 edge beams had to be modified and reconstructed.   However, technically speaking, RGBC could not complete such changes with UHW in 29 days.   Scenario 3 is the construction of LG/F slab and edge beams with UHW after the OP, he said that not only there is no time limit, there was no constant supervision and random checks by BD as there was before the OP.  In short, he suggested that the present case is very likely to be in scenario 3.

SLO

157.In his supplementary report, he gave 4 reasons to support his opinion that the skylights were constructed after the OP:-

“a. There was no hurry to complete the skylights. As of 22 January 2007, the basement remained unexcavated. Compared with the construction of the basement, work on the skylights was relatively simple and easy. Work on the skylights was not on the critical path. Evidence from the labour department showed that as late as 2009 and 2011, a builder was still carrying out work on the site.

b. The details adopted for the skylights were those of temporary openings. Whoever built the skylights did not understand the requirement of permanent openings.

c. The details used for the skylights would be rejected by a TCP. The size of the openings was greater than 500mm. The design had to be properly checked by the engineer. The design of the skylights could not be the work of an RSE. The construction of the skylights could not be the work of a RGBC.

d. It was a lot easier to form the openings in the lower ground floor structure by working from the top.  A more appropriate working sequence was to break up enough area in the swimming pool base slab before forming the openings in the lower ground floor slabs.   At the conclusion of the work, water proofed concrete for the swimming pool placed.  This sequence would be a lot simpler and more logical than the sequence proposed by Mr Chiong.  Breaking up the swimming pool base slab for the construction of the skylights would have leakage problem.  This was Mr Chiong’s concern.  But this was inevitable because if the builder wanted to install the skylights, the main pool drains outlets pits and their associated drainage pipes, the base slab had to be substantially broken up and reconstructed.  The builder had to stop leakages by the use of waterproofed concrete.  Obviously, conditions on site showed that this was not entirely successful.  From BD’s investigations and from what I observed, there were indeed leakages from the pool.  The photographs in BD’s investigation reports showed stalactites formed at the cracks on the lower ground floor slab.  This indicated that there was a long period of leakages from the pool.”

Discussion

158.So much about the respective experts’ evidence, in the light of their many technical theories and lengthy oral testimonies on a very wide spectrum of structural engineering and scientific terms, whether peripheral or not, at my request, the parties prepared their closing submissions on expert evidence with these main questions in mind:

(i) if different parameters have been used, the parameters upon which each expert’s opinion is based and the reasons for adopting different parameters;

(ii) the issues on which the experts have reached a common opinion and in respect of each such issue what that common opinion is;

(iii) the issues on which the experts have failed to reach a common opinion and their competing views on each issue; and

(iv) the reasons for a given expert’s disagreement with any opposing expert’s views on each such issue.

Different parameters?

159.On direction (i), it appears that both parties’ experts (PW10 Professor Li, PW11 Mr Chiong, DW1 Dr Chan and DW2 Dr Lau) applied identical or similar parameters in that they all concerned with the sequence and timing of the UBWs.  Regarding SLO, PW10 Professor Li and DW2 Dr Lau appear to be most concerned with DMT evidence.  PW12 Mr Yu’s evidence is not material on the main issue.

Common opinions?

160.On direction (ii), all experts appear to agree that at the time of the issuance of the OP, the specifications at the LG/F slab and its various components appeared to comply with the approved plans in 2006.  Secondly, the experts appear to have reached a common ground that the UHW and the LG/F slab and beams were cast at the same time but they do not agree on when this pour occurred.  Thirdly, UHW was poured at a different time and prior to the lower wall panels but they do not agree as to when the lower wall panels were constructed.  

Disputed opinions

161.The most important part of the disputed opinion is whether of the UBWs were constructed before or after the OP.

162.Other disputed opinions on subsidiary questions or peripheral matters include:-

(i) Professor Li made use of the DMT to suggest that the concrete around the SLO was not subject to impact of strong force caused by hacking or powerful tools, which may further explain that the slab with such openings was cast in one single pour.  Dr Lau opined that not only the test method was novel and not generally recognized, the test result was “extraterrestrial” in that some figures suggested absurd result;

(ii) Mr Chiong opined that the junction between the unauthorized basement wall and the approved beam at its top was seamless while Dr Lau’s view was that “Apple Bite” theory would cover CJ and hence not visible;

(iii) Professor Li opined that excavation under LG/F (for the purpose of building basement) should be completed on 29 October 2005 while Dr Lau said that it is more feasible, workable and practicable to do the same thing after the OP.    There is ample time and less risk of doing the same thing after the OP.

Evidence analysis

163.While in mind the main issue is whether the UBWs were constructed before the OP or after the OP, it is the duty on the prosecution to prove beyond reasonable doubt that the UBWs were constructed before the OP.  The defendants have no duty to prove the UBWs were constructed after OP.  The proper question to be asked is what are the proven factual and/or scientific evidence that the prosecution experts could rely on to suggest that the UBWs were constructed before the OP.

Comments on Professor Li’s evidence

164.The defence laid massive attacks on his evidence on two main areas: (i) while the objective evidence and his analysis can support the proposition that the upper hanger walls at the basement was constructed at the same time of the LG/F slab, it is incumbent on the him to state the primary facts that enable him to deduce that UBWs were constructed before the OP.  However, except bare assertion, he made no reference on how and on what basis that the said monolithic pour must be done before the OP or could not have been done after OP; (ii) there is no sufficient factual basis to suggest that it is impracticable to demolish the LG/F and rebuild part of 7YR as of the state of condition in 2012 without demolishing the whole building. 

165.It is common ground that the UHW and LG/F slab is a monolithic construction.   In his 1^st report, Part III, para. 5, Professor Li explained the reasons why the UHW was constructed before the OP, he emphasized that it could only be feasible before the OP:-

“In addition, it was found that the surface color of the columns had the yellow marks of backfilled soil while the inner surface of hanger walls, underside of LG/F slabs and upper parts of columns in basement had no sign of the refilled soil. This shows that after the construction of hanger walls LG/F beams and slabs, these structures have not been in contact with soil indicating no backfill done after their construction. All above provided conclusive evidence that construction of basement hanger walls and related excavation were well planned activities, carried out at the time of constructing the LG/F which could only be feasible before OP and the excavated space were not backfilled before OP.”

166.Professor Li then went on to say “From the observation on site and logical construction sequence, they were constructed sometime in Oct 2005.”   

167.He did not set out sufficiently or at all, except the concept of monolithic pour, what are the primary facts or objective evidence that supports his “observations on site” or “logical construction sequence” that the UHW were constructed sometime in October 2005. 

168.In relation to his logical construction sequence, one point may be relevant.  Despite his long list of academic achievements, he has not taken part in any construction works in Hong Kong.  He has no local practical experience in the context of structural engineering in Hong Kong.  He is not a RSE.   His logical construction sequence took into account such factors as convenience of doing excavation works and the risk of being discovered by BD’s officers.   Not only such factors may also open to another possibility i.e. Stage I and II may take place after the OP, it seems too presumptuous for him to say Stage I and II works were carried out before the OP, simply took into account such factors as convenience and risk of being discovered.   According to him, works on Stage I and Stage II were completed before the OP, it means UHW and lower portion of basement walls had been connected before OP.   This is contrary to Mr Chiong’s evidence (Mr Chiong opined that only UHW was constructed before the OP).

169.Nor his observations, assumptions or theories enable him to jump to the conclusion that UHW were constructed in October 2005 without sufficient primary facts or factual basis. The DMT did not suggest the age of concrete. His evidence in chief or under cross examination related more to visible CJ or absence of CJ.  That only suggests whether a member of concrete structure is one single pour or separate pour.   CJ, together with reinforcement bars details, may even suggest the sequence of concrete pour, but certainly not the age of concrete.  Besides, although the reliability of DMT is under challenge, likewise, even if there is no issue of reliability regarding DMT, it only suggests that whether a particular part of concrete has been subject to certain degree of force.   It could not say “when”.

170.In respect of SLO, Professor Li said that “Though there were signs showing that the construction details of the opening have been modified after the first opening was formed, it is conclusive that a structural opening in the roof slab for the roof skylight was formed at the time of casting the roof slab and therefore before OP.”

171.While it is possible that bottom slab of the swimming pool was cast with original openings which were then modified into bigger ones as discovered in 2012, Professor Li failed to set out sufficient reasons or basis why it was therefore constructed before the OP.  

172.His substantial works on DMT is irrelevant to the timing of the construction of SLO.  PW9 Nina Quieta, the FT Lab’s technical staff once mentioned that one of the objectives of conducting DMT is relevant to the age of the concrete.  However, the key person instructed the conducting of DMT is Professor Li who clarified that the test aimed at looking into the micro cracks of concrete, which is irrelevant to the timing of the construction of SLO (see paragraph 79 the purpose of the DMT test).  Besides, the methodology adopted in this DMT is one of hybrid of ASTM and ACI.  While ASTM is the mainstream methodology and within the international standard, the ACI method is more relevant in academic aspect, the combination of the two is yet to be proven.  No sufficient paper has been written on it and thus there had been no peer review. In R v J-LJ [2000] 2 SCR 600, the court proposed the following criteria for considering whether to receive and consider opinion evidence based on “new” science.   

“whether the theory or technique has been subjected to peer review and publication. Submission to the scrutiny of the scientific community is a competent of ‘good science’, in part because it increases the likelihood that substantive flaws in methodology will be detected;

the known or potential rate of error or the existence of standards; and

whether the theory or technique used has been generally accepted. A

“reliability assessment does not require, although it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within that community.” Widespread acceptance can be an important factor in ruling particular evidence admissible, and “a known technique which has been able to attract only minimal support within the community.” … may properly be viewed with skepticism.

173.New science may still be accepted by the court provided that they have a proper foundation with fairly stringent criteria.  Technology such as DNA identification technology is one of the examples[45]. However, when such new science was at early stage of development without sufficient degree of acceptance within that community and did produce absurd result, the court is entitled to look at it with skepticism because it may not be reliable.   In the present case, part of the DMT test did produce absurd result that enabled the defence to comment fairly some test results of the coring samples were materials unknown to human.  This submission is not without merit.

174.For example, a table of DMT on the coring samples taken in this case (S1 to S8 except S2 being a damaged sample) shows two relevant factors such as Poisson Ratio (PR) and Length and Diameter Ratio (LDR)[46]. According to PW8, the normal result for PR should be 2 or more.  The normal result for LDR should be within the range of 0.15 to 2.  However, the table shows the results of the coring samples S1, S3, S4, S5, S6, S7 and S8 regarding PR respectively are 0.05, 0.21, 0.05, 0.04, 0.05, 0.06, 0.06.  The results of LDR are 1.83, 1.82, 1.81, 1.73, 1.84, 1.95, 1.86.   One may note that regarding PR, only sample no. S3 has the figure closes to 2.  Regarding LDR, none of the samples have a figure of 2.  Despite Professor Li opined that the DMT is still reliable, he failed to explain with compelling reasons how the outcome was still reliable.        

175.I agree that the test is not conclusive or helpful at all, let alone proving the age of concrete and the UBWs were constructed before the OP. 

176.On the other hand, in rebutting the defence’s suggestion of “UBWs were built post OP”, Professor Li said that “After the 3-storey building is completed and OP obtained, it is impractical to demolish the LG/F and rebuild such without demolishing the whole building.  I have a chance to look through the available aerial photos taken for the building during the concerned period.  There was no sign that the building had been demolished and rebuilt.  Therefore, the LG/F related basement structures were built before OP.”

177.Professor Li said that “it is impractical to demolish the LG/F and rebuild 7YR into the state of condition as in 2012”.  He did not say words to the effect that “it is inherently impossible”, he simply considered the question of “practicality”.  In fact, he was confronted with the suggestions that there are various practical considerations and inertia that tip in favour of constructing of the UBWs after the OP[47]. Despite such confrontation, he just reiterated his construction theories without giving a direct answer.  Nonetheless, the basis of forming his opinion of impracticability is looking through the available aerial photos and hence no sign that the building had been demolished.   That reason seems to be too simple because the available aerial photos, in particular the low frequency of taking such aerial photographs and what is depicted in each and every such photos, were unable to show one way or the other whether the UBWs’ associated demolition and excavation works in the basement or transportation of trucks of soil after excavation were engaged before or after OP.      

178.Besides, in order to support his proposition of construction of UBWs before the OP, he proposed the logical construction sequence:

“… I name the construction of hanger walls and swimming pool skylight openings as Stage I and the lower basement walls together with the basement slabs Stage II. From a logical sequence of construction, Stage II construction should have followed shortly after Stage I and before OP. First, the construction of stage I realised re-excavation to about +15.0mPD. It would be more convenient to re-excavate the rest of the backfilled soil to the level of +12.5 mPD when the site is still under building construction rather than after occupation.

179.Professor Li’s first reason hinges upon convenient basis.  He said that it is easier to re-excavate the soil when the site is still under construction rather than after occupation. When he was confronted with the suggestion that it is more convenient to re-excavate soil after the OP is granted in terms of workability, feasibility, risk of being discovered by BD’s staffs before the OP, those factors seem to suggest greater inertia to do it after OP, he stuck to his reports and refused to modify his opinion.

180.He gave 3 reasons to explain why UBWs could not be constructed after the OP:-  

Second, if the Stage II works are after OP, the space between the hanger wall and sheet piles have to be backfilled from +15mPD for the construction of the terrace slabs (i.e. slabs around the building which have been approved as on-grade slabs) for OP inspection.  Then after OP, such slabs have to be broken and excavated back all the way down to the foundation level for the construction of the lower basement wall.  This redundant works seems illogical for the well planned construction sequence as evident.

Third, if the Stage II works are after OP, the very extensive re-excavation and concreting job not typical for household renovation or fitting-out can catch more attention on reporting of unauthorized building works.  It is more risky.

Fourth, if the construction of the Stage II is after OP, the risk of constructing the hanger walls before OP are not justified as the basement wall can easily and more conveniently be constructed in whole by inserting the starter bars into both the underside of lower ground beam and the footing as shown in Figure 6 by drill-in methods.  This one-off construction of basement wall after OP does not make any difference for the function of the basement wall constructed in this way compared with the 2-stage construction.

181.This line of reasoning on Stage II works not only presupposed the existence of LG/F with UHW before the OP, he also took into account such factors as feasibility, workability and the risk of being discovered so as to justify why he thought the UBWs were not constructed after the OP (instead of discussing about the age of concrete or timing of pouring concrete).

182.He also came into the views that the construction works of Stage I and II works ie both UHW and lower basement wall were finished before the OP.   If one always bears in mind this question “what are the evidence in support of pre OP UBW” in reading his reports or listening to his testimonies, it seems that his construction sequence rings hollow.    Further, this is contrary to Mr Chiong’s opinion that only UHW, not the lower basement wall were constructed before OP.

183.Even if one needs to consider feasibility, workability and the risk of being discovered so as to deduce the construction theory, Professor Li was of the views that the excavation works, the removal of more than 100 trucks of soil, the construction of LG/F slab with UHW, possibly in connection with the lower basement wall shortly thereafter, could have been completed in 12 working days in October 2005. However, he seemed to have failed to pay sufficient regard to the following factors.  The risk of being discovered by BD officers is much higher before the OP than after OP because there are unannounced site inspections before OP (see “the BD inspections” above).   But there is no such random inspection after OP. Secondly, AP or RSE would not have risked their professional career for engaging such illegal activities before OP when UBWs could have been built after OP with less serious consequence (provided that the owner does not concern costs and time of moving in, that the prosecution sensibly agreed that this was the case here).  The AP, RSE, RGBC would no longer be responsible for alteration or renovation works not within the engagement after the OP.    After OP, at most, there might be Labour Department Officers checking against issue of occupational safety, there is no more issue of structural safety once OP is issued, or at most, there might be complaints about noise after OP.   In any event, those illegal activities after OP would not involve in substance false declaration whenever an owner has time and money to engage substantial demolition and rebuilding works after OP.        

184.All in all, his testimonies are well founded only in respect of the undisputed opinion that the LG/F slab and the UHW are monolithic pour.   It is also well founded only in respect of another piece of undisputed opinion that the UHW and the lower portion of basement are separate pour because of the apparent CJ in between.  However, when it comes to the crucial question, whether UBWs were constructed before the OP, the factors that he seemed to have taken into account are not factual or scientific but argumentative discussion such as (i) workability; (ii) feasibility; (iii) convenience and (iv) the risk of being discovered by BD’s staffs.  However, in criminal cases, one cannot simply ignore the fundamental question, whether there is sufficient circumstantial evidence, factual and scientific, to suggest in the present case the timing of pouring concrete (in terms of month or year) or the age of concrete so that one may form an opinion as to whether UBWs were constructed before the OP.  Whether from his reports or oral testimonies I am unable to find sufficient factual and scientific basis on when UBWs were constructed.  The construction theory remains a theory lacking objective evidence in support.  It is unsafe and unsatisfactory to rely on his theories without the aforesaid evidence.

185.The importance of ensuring that the factual and scientific basis of the evidence proposed to be given by the expert and the basis for his reasoning are properly and fully presented to the jury (as this Court is also a tribunal of fact) was underlined in Lewis v R[48] and was followed in Makita  (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705:-

“Forensic evidence, especially if it goes to a vital issue implicating an accused person in the commission of an offence, may often have a prejudicial effect on the minds of a jury which far outweighs its probative value. The jury, being people without scientific training, may often be impressed by an expert’s qualifications, appointments and experience and the confident manner in which he expressed his opinions. And yet it ought not be left to such matters alone to provide a foundation for the jury making an assessment of the probative value of forensic evidence, particularly where there are conflicts in expert testimony, or where it is acknowledged that other experts of more or less equal distinction are unlikely to agree.

… There is a tendency amongst academics, professionals and others who develop skills in a particular area to mystify their field, often by the use of what seems to be outside to be arcane language … trial by expert must never be allowed to take the place of trial by jury.  The inability to articulate the principal tenets that need to be understood, to describe in ordinary language the methods used and the reasons that point to a particular conclusion, these are hallmarks of unreliable science and the not-so-qualified expert.”     

186.In essence, although I find him as an honest and experienced expert witness, I do not accept his opinions.

Comments on Mr Chiong’s evidence

187.To advance his theory of pre OP UBWs, regarding UHW, Mr Chiong mentioned the absence of CJ between UHW and the LG/F slab.  He referred the lack of CJ in his report as “seamless”.     He also ruled out the possibility of post OP demolition of LG/F slab and recast. He did give reasons and the factual basis on monolithic pour regarding UHW and LG/F slab.   However, likewise, regarding why such monolithic pour should take place before the OP, it lacks sufficient factual and scientific basis.   This observation equally applies to his opinions on SLO.  

188.For illustrative purpose, he said in paragraph 18: “Based on the visual inspection, it is beyond reasonable doubt that the upper portion of the unauthorized basement wall should be cast together with the lower ground floor beams and slabs and the column above +16.0mpd.  In other words, the upper portion of the unauthorized basement wall should have been cast before the OP application.”  It is easy to understand from the reasoning that LG/F slab should be cast with UHW.  However, it is not easy to understand how it can be jumped and concluded that “In other words, the upper portion of the unauthorized basement wall should have been cast before the OP application.”        

189.Regarding SLO, PW11 could not make a conclusion as to the possible time when the unauthorized openings were constructed:

“I cannot form a conclusive view on the possible time of the construction of this portion of the swimming pool base slab with the unauthorized openings in it. Nevertheless, judging from the finding that the construction of the unauthorized basement was planned in advance, it is very likely that the slab openings were formed in the swimming pool base slab at the time of the construction.” Any subsequent changes of the configuration of the slab openings should involve partial demolition and recasting of the swimming pool. These modifications, if carried out improperly, may result in leakage of the swimming pool, which is undesirable from the design and maintenance points of view. It is therefore very likely that the extant slab openings in the swimming pool base slab for the unauthorized basement skylights were formed at the time of the construction before the OP application.”

190.Mr Chiong opined that it is very likely that the slab openings were formed in the swimming pool base slab at the time of the construction simply because of his subjective views that the construction of the unauthorised basement was planned in advance.  I do not see there is any objective evidence for him to say so.      

191.Further, he based his opinion as to why the extant slab openings in the swimming pool base slab were formed before the OP application on consideration of the desirability of design and maintenance.  He also said that had there been subsequent changes of the configuration of the slab openings, it would have involved partial demolition and recasting of the swimming pool.  These modifications, if carried out improperly, might result in leakage of the swimming pool,which is undesirable from the design and maintenance points of view.   With respect, desirability of design and maintenance are not factual or scientific evidence.   Secondly, in fact, there was objective evidence to suggest that in fact, there was leakage problem at underside of the swimming pool (signs of stalactite).   

192.In short, likewise, although I find him as an honest and experienced expert witness, I do not accept his opinions.

Comments on Dr Chan’s evidence

193.The prosecution seemed to suggest that Dr Chan is not independent and somewhat like a “hire gun”.  He submitted that:-

“In re-examination, Dr Chan emphasized again that the ‘main reason’ for his conclusion was that it was impossible to finish the works in the short period of time. However, if this ‘Impossibility’ theory is so important and crucial to Dr Chan’s conclusion, it is surprising to learn that nowhere in his 34-page report did mention this impossibility of finishing the works in that time frame. The only thing he mentioned in this regard is that ‘it could not be carried out in such a short period of time without drawing TCP’s and BD’s attention (to it).”

194.In my views, it may be too harsh to suggest that Dr Chan gave after thought opinion.  He did say at the outset that “it could not be carried out in such a short period of time.”  The substance of which opens to his final oral testimony on “impossibility”.

195.But I found that Dr Chan was consistently evasive in cross examination by the prosecution on material questions. He was sometimes emotional.  It seems to me that he ran the case as if he is the advocate more than an expert witness.  That impressed me that he is not an independent and reliable expert witness, albeit he is a knowledgeable structural engineer.

196.Similarly, although I find him as an honest and experienced expert witness, I do not accept his opinions.

Comments on Dr Lau’s evidence

197.In my views, Dr Lau’s investigations and opinions was significantly more comprehensive than the prosecution’s experts.  Dr Lau’s investigation included the removal of false ceilings, their supporting frames and redundant services from the basement ceilings.  He then highlighted the features that were different from the 2006 approved structural plans on a drawing in his Appendix G and then again in Appendix AX of his supplemental expert report.

198.The features he discovered included the new suspended steel slab under the former on-grade turn table slab, a new beam constructed to support the suspended steel slab, a new manhole near column C2 and two 1.18m by 1.18m sunken slabs to receive the two main pool drain outlet pits in the swimming pool.   Dr Lau measured the sizes of beams of the lower ground floor structure from the basement.  He found that 16 out of 34 beams on the lower ground floor had their sizes significantly different from those shown on the 2006 plans.  He also found that 5 out of 12 edge beams had their sizes significantly different from those shown on the 2006 plans.  The expansion joint near the swimming pool disappeared[49].

199.These differences were not reported by BD’s investigators or by the prosecution’s expert witnesses.  Dr Lau accepted many of the facts revealed by BD’s investigators as correct. Facts such as the finding of drilled in and grouted starter bars, joints at 15.3 mPD, the casting of the lower ground floor edge beams and the upper hanger walls in one single pour etc.  On the other hand, based on additional information revealed by a more thorough investigation, Dr Lau was of the opinion that the UBWs could only be constructed after the OP.  The UHW could not be constructed before the OP application date of 22 January 2007.

200.In Dr Lau’s opinion, the casting of the lower ground floor edge beams and hanger walls could only be carried out after 22 January 2007.  This seems to be supported by some compelling reasons.

201.Firstly, 16 out of 34 beams in the lower ground floor structure had significant revisions in sizes.  One beam LGB16 in particular had its size changed from 300x 900 to 300 x 610[50]. He said that the size of this beam cannot be changed unless LGB31, LGB17, LGB18, LGB19 and LGB20 were also demolished and rebuilt.  Similarly 5 slabs supported by these beams had to be demolished and rebuilt.  These beams supported the swimming pool.  A major part of the swimming pool, (including the two skylights and one of the sunken slabs for the main pool drain outlet pits, if they were already built), had to be demolished and rebuilt. 

202.Secondly, 5 out of 12 edge beams were demolished and rebuilt after the OP.  If the hanger walls were already constructed beneath the edge beams before the OP, the demolition and reconstruction would mean joints at the junction of the edge beams and the hanger walls.  The prosecution’s experts and investigators said that there were no joints between the edge beams and the hanger walls.  If joints could not be found, it seems to me that it is more likely than not that the hanger walls were not constructed before the OP.

203.In Dr Lau’s opinion, the whole of the lower ground floor structure including all the edge beams and slabs were demolished before the commencement of basement excavation after the OP.  According to Dr. Lau’s evidence in Court, this was the only safe way to construct the basement; otherwise exhaust fumes from the mechanical excavators would be suffocating to workers working inside the basement.  The congested space under the lower ground floor slab would be construction hazards for workers and no construction workers were willing to work under such dangerous conditions.

204.It was pointed out by Dr Lau in Court that the demolition of the whole of the lower ground floor structure would not cause instability to the building structure.  Dr Lau said that according to his calculations, the building would still be stable.  He elaborated that the lower ground floor was the heaviest floor in the building.  The floor supported a lot of plant and machinery and equipment for the building.  The live loads used for the design of the lower ground floor were 7.5 kPa, whereas the live load for the upper ground floor and the first floor was only 2 kPa.

205.Thirdly, whether the models presented by the Prosecution in Court seemed to be misleading once attracted serious contentions, in particular, whether the building models used at trial created the impression that all columns ran from footings to the top floor.  Dr Lau said that of the 16 columns, only 10 of them continued from the footings to the roof.  One column, C16 stopped at the lower ground floor.  So the remaining loads acting on C16 after removal of the lower ground floor structure and water in the swimming pool was basically zero.  For the other columns, such as C3, C6, C7, C11 and C15, which went up only to the upper ground floor, the reduction in loads was up to 70 to 80%.  For the remaining 10 columns, which went to the roof, such as C1, C2, C4, C5, C8, C9, C10, C12, C13 and C14, the reduction in loads was about 50%.   In Dr Lau’s opinion, the building would not collapse because of the removal of the lower ground floor structure.  Of course, other supporting propping is required for safety reason.   He was hardly challenged on this aspect during cross examination.

206.Dr Lau pointed out in Court that there were drastic changes in beam sizes between the 2004 and 2006 plans[51]. Between the 2004 and 2006 plans, 9 out of 12 edge beams had their beam sizes revised.  Between 2006 and as-built 5 out of 12 edge beams sizes were revised. Moreover, if these beams were revised, there must be joints between the edge beams and the HWs.  BD’s investigators did not find these joints.

207.The prosecution tried to rebut Dr. Lau’s suggestion that the whole lower ground floor was reconstructed after the OP.  The prosecution wanted proof of joints around the existing columns.  In court, Dr Lau and the Prosecution used 3-D drawings, photographs[52] and models using foam to demonstrate why joints could be found or not to be found.  DW2 and the prosecution agreed that there must be joints between the hanger walls and the columns.  This was in fact the case as seen from the site photographs.  Dr Lau said that there must be “apple bites” into the surface concrete of the columns if new beams were to be cast against the existing columns.  He used 3-D sketches to demonstrate the apple bites and the connections of beams onto existing columns.  He said one could not see the joints because the joints were enclosed by new concrete in the beams as shown in the sketches and demonstrated by the site photographs.  If the bites were shallower than the depth of the new beams, again one could not see the joints.  The only exception was the case when the depth of the bite was made larger than the depth of the beams.  In that case, new concrete was required to fill up the little gap below the beam.  The filling up of the gap was apparent on the site photographs presented by Dr Lau in Court. 

208.The prosecution also introduced an aerial photograph of 19 May 2006 to prove that there were skylights on the day[53]. There were in fact two aerial photographs taken for the Lands Department on 19 May 2006.  The prosecution purchased one of the two photographs and Dr Lau purchased the other[54]. They were photographs taken at different heights and at different angles of the sites around 7YR.  In the prosecution’s copy, there were two pale patches alleged by the prosecution as evidence of the rectangular and square skylights.  In Dr Lau’s copy there was only one pale patch.  Dr Lau said that the implication was that the number of patches depended on the heights and angles of the shots.

209.Secondly, pale patches meant exposed surfaces reflecting light from the sun.  The timber frames used for the construction of skylights could not be observed vertically from the air.  Thirdly, openings would appear as dark patches rather than pale patches because depressions always reflected less light from the sun.  Dr Lau was asked about other pale patches on buildings and construction sites close to 7YR.  Dr Lau said these must be exposed objects like timber boards or boxes.  They could never be skylights.  In my views, those aerial photographs are not clear or conclusive enough to suggest that there were skylights openings as of 19 May 2006.   Be there as it may, if the prosecution sought to rely on a single aerial photo to suggest the original openings or SLO appeared in that photo, it would be too prejudicial. That is because there should be relevant expert on aerial photograph to explain what is depicted in the photo, who might compare different photos before or after the photo in question, together with analysis on angle, height, time of the day, resolutions of the photo and survey sheets.  This has been done in previous cases.  R v Cheung Kam Tong HCMA No. 266 of 1996 (heard by full bench of the Court of Appeal); HKSAR v Vily Field Investment Limted HCMA No. 1011/2006; HKSAR v Fan Chun Keung HCMA No. 912 of 2004.

210.Dr Lau then referred to a calendar of year 2006 to demonstrate his points.  On 19 May 2006, a Friday, the aerial photograph was taken.  On 22 May 2006, two BD officers arrived on site to carry out hammer tests on 4 columns.  One of the 4 columns was C12.  This column was 850mm away from the square skylight.  Dr Lau said the officers could not possibly miss the skylights because they were so close to these features. On 24 May 2006, a Wednesday, Mr. Tai Chi Ho from the RSE office visited the site to inspect the reinforcements at the swimming pool.  Mr. Tai found that some covers were inadequate and that the trimming bars for lighting recesses were wrongly placed.  Other than the above he did not mention in the “request to inspect” form the skylights or the main pool drain outlet pits.  I agree that if the original openings or SLO had been there, Mr. Tai would have had to stop the concreting work because he would not have been able to find reinforcement details of these features in the plans he used for inspection. There could not be skylights or main pool drain outlets on the day of Mr. Tai’s site visit. 

211.I accepted Dr Lau’s opinions because his opinion is the most comprehensive, logical and independent one.  I found him to be an impressive and reliable witness.  He was clear in his thinking process.  His explanations and opinions were knowledgeable and fair. He was not evasive and his reasoning could stand up to scrutiny despite the forceful and powerful cross examination by the prosecution.

Conclusion

212.Regarding factual witnesses, I find PW2 Tang Wai Chau Chezy as an honest but unreliable witness.  I find PW4 Chow Ka Lok as an honest witness but unhelpful witness.   For the remaining factual witnesses, no issue on credibility is taken, I accept their evidence. 

213.Regarding expert witnesses, I do not accept the opinions of Professor Li (PW10), Mr Chiong (PW11) and Dr Chan (DW1) for the reasons as stated above.   I accept Dr Lau’s (DW2) opinions.

214.The overview of the present case is this.   First and foremost, there is no direct evidence of any UBWs or illegal structures being in place before the OP.  Nor there was sufficient circumstantial evidence or signs justifying an irresistible inference that the UBWs were constructed before the OP (ie 2 February 2007) despite the fact that the basement and other illegal structures were discovered in 2012.  The evidence of factual witnesses is not sufficient to prove the construction of the UBWs was before the OP. 

215.PW4 did not discover any signs of constructing the UBWs, while I was of the view that it is neither here or there, I would have thought that had there been UBWs’ associated works, there would be obvious signs such as irregular form works, steel bars or deep trenches around the site.  Even if PW4 was less zealous in conducting site inspection, such signs, if existed, should not have escaped the attention of BD’s officers who conducted regular but unannounced visits at the site.   Further, the 2^nd round of scrutiny is the BD’s officers such as PW5 who conducted detailed inspection for the purpose of issuing the OP.  There were a total of 58 photographs taken by the BD’s officers on the day of inspection shortly before the OP (see “Occupation Permit” above).   PW5 also confirmed that their team conducted inspection conscientiously.  No one stopped them from inspecting any other parts of the building and they were given free access to any part of the building.

216.From what has been said by PW5, I can safely assume that those who conducted “OP inspection” should be interested to check if there are unusual features, which are indicia of UBWs.  However, those prudent and conscientious officers did not discover any unusual features at the time of “OP inspection”. It would be too presumptuous or prejudicial to suggest “UBWs were there before the OP” and “the concealment is too perfect”.  More importantly,   there is simply no objective evidence to prove such signs of UBWs existed before OP.  This, in my views, not only casts doubt on whether UBWs were constructed before the OP, it tips in favour for the proposition that it is more probable than not the UBWs were constructed after the OP.     

217.In summary, the prosecution failed to prove beyond reasonable doubt that the UBWs were constructed before the OP.   It is not necessary for me to deal with other points of defence such as the lack of knowledge of the illegal activities on the part of D2 to D4.

218.In a nutshell, the summonses against D2 to D4 should be dismissed.   

219.Lastly, I must express my gratitude to the able assistance of counsel who were cooperative in pursuing effective and efficient case management. Special thanks should be given to Mr Oderberg for his diligence and Mr Clive Crossman SC for his pragmatic approach in that without their contribution, the hearings may be overrun for another 10 days.

Present: Mr Keith Oderberg, counsel on fiat, leading Mr Derek Lai (ADPP (Ag)) for the Department of Justice

Mr James Lee leading Mr Alex YH Lai instructed by Messrs. Li & Partners for the 2^nd Defendant (D2)

Mr Tony Jenkyn-Jones instructed by Messrs. Minter Ellison for the 3^rd Defendant (D3)

Mr Clive Grossman SC leading Mr Anthony Chow instructed by Messrs. Tso Au Yim & Yeung for the 4^th Defendant (D4)

[1] Exhibit no.P8

[2] Exhibit no P14

[3] Exhibits nos P7, 22 and 23

[4] Exhibits nos. P61-63

[5] Exhibit no P24-27, 30, 35

[6] Exhibit no. P64-67, 69, 74

[7] Exhibit no. P79

[8] Exhibit no. P15

[9] Exhibit no. P16

[10] Exhibit no. P17

[11] Exhibit no. P18

[12] Exhibit no. P19

[13] Exhibit no. P60

[14] Exhibit no. P20

[15] Exhibit no. P42

[16] Exhibit no. P21

[17] Exhibit nos. P49-58, 81

[18] Exhibit no. P86

[19] Exhibit no. P86A

[20] Exhibit no. P86B

[21] Exhibit no. P40

[22] Exhibit no. P41

[23] Exhibit no. P82

[24] Exhibit no. P43

[25] Exhibit no. P44, Book A and Book B

[26] Exhibit no P59 and P59A (translation)

[27] Exhibit P7

[28] Exhibit P9

[29] Exhibit P10

[30] Exhibit P88

[31] Exhibit D2-D4

[32] Exhibit P44A

[33] Exhibit P83 and P84

[34] P46 & 46A

[35] CJ is a joint created when new concrete pour meets with the concrete already in place.

[36]Para 4 of Part VI of his 1^st report: The results of dynamic modulus test for core S1 and S3 were 32 Gpa and 31.7 GPa; ….. All the cores were from bottom layer slab.  The dynamic values for the cores of S1, S3, S7 and S8 were almost identical and the values for the cores of S4, S5 and S6 were very close, or similar.  Two conclusions could be obtained from the observations: i. S1, S3, S7 and S8 were same batch of concrete and so was for S4, S5, and S6; ii. There was no damage in the area of the edge of the openings.  It implied that the hole was not created after finishing the casting of swimming pool bottom plate as a whole piece because that to break a reinforced concrete slab with a thickness about 400 mm, powerful tools such as pneumatic drill or compressed-air hammer had to be used.  The application of such type of tools would create serious damage during the process of removing original concrete and hence caused the reduction of dynamic modulus of the concrete.  In the modification of the lower slab structural openings, it was envisaged that due to the relatively thinner layer of the lower slab (approved lower slab 150mm vs upper slab 225mm) and relatively small amount of concrete were required to be removed, strong pneumatic tools were not used.

[37] Exhibit P45

[38] Exhibit P45A

[39] Exhibit P47

[40] Exhibit P47A

[41] para. 3.1.3 of his 1^st report Exhibit P47

[42] Exhibit D2-D6

[43] Para 1.4 to 1.11 Exhibit D2-D6

[44] Exhibits D3-12 and D3-13

[45] HKSAR v Lam Man Fai [2004] 2 HKLRD 346

[46] Exhibit No. D3-D2

[47] Such as (i) there were more stringent unannounced inspections by BD’s staff before OP whereas after OP, there was almost no BD’s inspection except Labour Department’s inspections about issue of worker’s safety, not on compliance with building regulations or structural safety; (ii) such professionals as AP, RSE, RGBC would not risk their career prospect in taking part such criminal activities before OP when UBWs could have been engaged easily after OP with less serious consequence, especially to an owner, money and costs is not an issue; (iii) owner would not have involved those professionals in to such risk when it is much easier to do so with less serious consequence after OP; (iv) there are objective evidence to show that at least within 5 years after OP, there were many works ongoing and 7YR remained like a constructions site without residential occupation.  

[48] (1987) 42 A Crim R 393

[49] see Table B and Appendix G and AX of Dr. Lau’s reports

[50] See Dr. Lau’s Appendix AX of his supplemental expert report

[51] Table A Supplemental Report), the 2006 and his as-built plans in Appendices G and AX (Table B Supplemental Report) and also the 2004 plans and the as-built plans in Appendix G and AX (Table C Supplemental Report

[52] Exhibit D3-14-1 to 12

[53] Exhibit P50

[54] Exhibit D3-15