Re Profit Success Development Ltd

CACV 87/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 87 OF 2014

(ON APPEAL FROM HCAL 158/2013)

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J U D G M E N T

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Hon Cheung CJHC (giving the judgment of the Court):

1.At the conclusion of the hearing on 17 December 2014, we dismissed the applicant’s appeal from Au J’s refusal of leave to apply for judicial review against the determination of the Appeal Tribunal (Buildings) dated 31 July 2013. On 22 December 2014, we handed down our reasons for judgment.

2.The facts of this case and our reasons for dismissing the appeal have been clearly set out in our reasons for judgment, and there is no need to repeat them.

3.By a notice of motion dated 14 January 2015, the applicant seeks leave to appeal to the Court of Final Appeal on one question of great general or public importance:

“Where

(a) the issue is whether structures in a purpose‑built industrial building are ‘building works’ or ‘plant and machinery’, it being common ground that the two are mutually exclusive; and that ‘plant and machinery’ would not be ‘building works’; and

(b) the Building Authority’s approval and consent are required by legislation for building works under pain of criminal penalties but are not required for plant and machinery;

can the BAT satisfy the requirement of giving adequate reasons for its decision by simply finding that the structures are building works, without determining whether they are plant and machinery, or giving any reasons to explain why they are not plant and machinery?”

4.In support of the application for leave to appeal, the applicant submitted by counsel that there has been no decision either at the tribunal level or in our courts giving guidance on how to distinguish between building works on the one hand and plant and machinery on the other.  The Tribunal is likely to face similar questions in the future, and guidance on the question of the extent to which the Tribunal must provide reasons when faced with such a question will be of general assistance not only to the decision‑maker but also to building owners and occupiers engaged in installing plants or structures in buildings as to whether the approval machinery under the Buildings Ordinance (Cap 123) is required.  It was contended that the applicant is genuinely and substantially prejudiced by the Tribunal’s failure to provide an adequately reasoned decision, because they have to remove the structures or risk being prosecuted and also do not know what structures they are able to place in the industrial building that are ancillary to and an integral part of the loading and unloading facility and are part and parcel of the plant or machinery and equipment or closely associated with it.

5.The intended judicial review only challenged the adequacy of the reasons given.  It did not involve the question of how building works may be distinguished from plant and machinery in the context of the Buildings Ordinance.  We did not decide that question and it did not arise from our decision.

6.What we actually decided was that the Tribunal had given adequate reasons for its decision.  As the applicant recognised in its written submissions, the law on the duty to give reasons is not in doubt.  The principles are clear. Application of the principles in a particular case must necessarily turn on the facts of the case.  Whether adequate reasons have been given in a particular case is, in other words, a fact sensitive question.  No question of great general or public importance is involved.

7.The present case is no exception.  Whether the Tribunal has given adequate and sufficient reasons for its conclusion turns solely on the facts.  Even if, for the sake of argument only, the Tribunal had given inadequate reasons for its decision as suggested, that would have been of no great general or public importance.

8.The application for leave to appeal to the Court of Final Appeal is therefore dismissed.

Mr Benjamin Yu SC and Mr Anthony Ismail, instructed by Mayer Brown JSM, for the applicant