香港特別行政區 訴 謝義平

On 28 September 2016, the Court of Final Appeal handed down judgment in HKSAR v TSE YEE PING (FACC 2/2016), dismissing the appellant's appeal against conviction for failing without reasonable excuse to comply with a removal order in respect of an unauthorised rooftop canopy. Mr Hui Siu-ting SC, Deputy DPP, with Ms Fung Mei-ki, acted for the respondent.

The appellant owns a 700-square-foot, three-storey village house in Sha Tin built in 1985 under a New Territories land grant. In 1986 he erected a rooftop canopy, and in 2011 extended it to 2.7 metres high. The Building Authority served a section 24(1) removal order, and on non-compliance the appellant was convicted under section 40(1BA). The magistrate treated the 2011 works as a new structure outside the 1984 Regulations. On appeal, the judge rejected that finding but held the canopy was not 'building works associated with a building' under regulation 3(1)(b), so the exemption still did not apply (§11-12).

Holding

The Court of Final Appeal held that: (1) the judge erred in adding a gloss to regulation 3(1)(b) requiring works to be of a nature and significance serving the building's original purpose; 'associated with a building' carries its natural width and covers any works physically connected to the building (§28); (2) the exemption question was nevertheless academic, because for height measurement under regulation 2 the canopy's flat roof, providing substantial shelter, qualifies as the 'main roof' (§48); the building's total height of 10.32 metres thus exceeds the 7.62-metre cap in regulation 3(2)(b), disqualifying the house from exemption. The Court also rejected reliance on the later Cap. 121 definition of 'height' (§49) and on the small house policy as an interpretive aid (§50).

The appeal was dismissed, with no order as to costs. The conviction stands: the canopy is an unauthorised building work under the Buildings Ordinance (§55-56). The respondent was allowed to argue the alternative height basis without separate leave, as the issue had been canvassed below and raised no unfairness (§30).

For practitioners advising on New Territories village house exemptions: any rooftop structure providing substantial shelter to occupants is the 'main roof' for height measurement. Adding such a structure will almost always push a house above the 7.62-metre cap and defeat the exemption. The land grant definition and small house policy offer no escape from this construction.