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

CACV 60/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 60 OF 2013

(ON APPEAL FROM HCAL NO. 14 OF 2012)

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BETWEEN

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.By our judgment of 29 January 2014, we dismissed the appeal by the Applicant. On 26 February 2014, the Applicant applied by a Notice of Motion for leave to appeal to the Court of Final Appeal. Two questions were relied upon as questions of great general or public importance,

“(a) “whether the Building Authority can order demolition of the entire building under s.24(1) of the Buildings Ordinance where unauthorised building works are carried out in that building?”

(b) “whether s.50 of the Buildings Ordinance empowers the Appeals Tribunal (Buildings Ordinance) to refuse admitting oral evidence, which bears on an issue of fact, proposed to be tendered at a preliminary hearing?” ”

2.In the Notice of Motion, the Applicant also asked for leave on the “or otherwise” limb under Section 22 (1)(b) of the Hong Kong Court of Final Appeal Ordinance [“the Ordinance”].

3.On 22 March 2014, the Applicant issued a summons asking for leave to amend the Notice of Motion, adding three more questions as questions of great general or public importance,

“(aai) “what should be the Court’s interpretative approach in relation to legislation which interferes or may interfere with the right to peaceful enjoyment of one’s possession by residents and legal persons of the Hong Kong Special Administrative Region?”

(aaii) “whether s.24(1) of the Ordinance is such legislative provision bearing such effect or potential effect of interference?”

…

(bbi) “whether on a fair interpretation of the provisions under Part VI of the Ordinance, the Tribunal is under a statutory duty to receive probative evidence bearing on an issue of fact relevant to its determination?” ”

4.Pursuant to directions given by the court, the applications of the Applicant are to be dealt with on paper.  Parties lodged written submissions which this court has duly read and considered.  The Building Authority opposed the applications.

5.There is no dispute that the present case does not fall within Section 22(1)(a) of the Ordinance and the Applicant is not entitled to bring the appeal as of right. 

6.We did not decide the appeal on the basis that a demolition order can be made in respect of an entire building simply because of unauthorized renovation works being carried out at some parts of the building, see para 29 of our judgment of 29 January 2014.  We decided the appeal on the basis that the Applicant had not shown a good cause at the Preliminary Hearing before the Tribunal in terms of its case that the building was not a new building.

7.In light of that, question (a) does not arise on the facts of this case.

8.Question (b) cannot be considered in a vacuum and we do not think there is any question of great general or public importance arising from it on the facts of this case.  As explained in our judgment, on the facts of this particular case the Tribunal came to the right conclusion that no good cause had been shown by the Applicant.  In the circumstances of the present case, the Tribunal cannot be faulted for not hearing the oral evidence in light of counsel’s explanation to the Tribunal as to the nature of the evidence.  This was a conclusion we reached on the specific facts and circumstances of this case.

9.We agree with Ms Wu (counsel for the Building Authority) that questions (aai) and (aaii) have not been raised or argued before Poon J or us in the substantive appeal.  In any event, Articles 6 and 105 must be read together with Article 7 of the Basic Law and the land-ownership regime in Hong Kong as highlighted by Lord Millett in Director of Lands v Yin Shuen Enterprises Ltd (2003) 6 HKCFAR 1 at paras 27, 28 and 57.  A landowner in Hong Kong does not have an absolute right to do whatever he likes with his property.  Controls under the Building Ordinance over unauthorised works are plainly necessary to serve the legitimate purposes of protecting the public against the vices and problems stemming from unauthorised structures.  On the question of proportionality, given the basis of our decision as mentioned above, we do not see any issue in that regard.  Viewed thus, there is no unlawful interference with the right of private ownership.

10.As regards (bbi), there is no doubt that the Tribunal has a duty to consider probative evidence.  However, for reasons already given in our judgment, the Applicant had failed to produce such evidence before the Tribunal in the discharge of its burden to show cause.  The question does not arise in this case.

11.For these reasons, we do not think the appeal involves any question of great general or public importance.  Nor do we see any exceptional circumstances warranting the grant of leave on the “or otherwise” limb.

12.The applications of the Applicant are dismissed. We also order the Applicant to pay the costs of the Respondent in these applications and provisionally fix the costs at $50,000.  If any party has any objection to this provisional assessment, he may lodge submissions on quantum of costs within 7 days, in which event we shall make a final assessment on paper.

Written submission by Mr Albert Yau and Mr Harrison Cheung, instructed by Fan & Co, for the Applicant

Written submission by Miss Teresa Wu, instructed by Department of Justice, for the Interested Party