江海溥 v. 屋宇署署長 (建築事務監督)

HCAL 1521/2022

[2023] HKCFI 882

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1521 OF 2022

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D E C I S I O N

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A.  Introduction

1.  By a Form 86 dated 16 December 2022, the Applicant – who acts in person – seeks leave to apply for judicial review of (1) a repair order number DR-HD-01982 (“Repair Order”), and (2) the Determination number 59-2021 (“Determination”) made by the Appeal Tribunal (Buildings Ordinance) (“BAT”) on 19 September 2022.

2.  The Repair Order was issued pursuant to section 28(3) of the Buildings Ordinance Cap 123 (“BO”).  The Repair Order was the subject of the Applicant’s appeal to the BAT, which appeal was dismissed by the Determination.

3.  For present purposes, it does not seem to me to matter that the BAT was not identified as a putative respondent to this application, where the BAT (if joined) would be likely to take the usual position of remaining neutral.  I shall also treat the other correct putative respondent or interested party as the Building Authority (“BA”).  Any minor errors in the format of the proceedings could be cured if leave to apply for judicial review is granted.

4.  On 5 January 2023, I gave directions for the BA to have leave to file and serve an initial response to the application for leave to apply for judicial review, and for the Applicant to file and serve a reply to that initial response.  I also indicated that, depending on the contents of those documents, the Court would decide whether to deal with the application for leave to apply for judicial review on paper, and if so that the Court would proceed to do so without further notice to the parties.

5.  The BA’s initial response was provided on 16 February 2023, signed by Mr Lam Chin Ching Gary of Counsel.  The Applicant filed his reply on 9 March 2023.  Thereafter, the BA (by letter from the DOJ dated 21 March 2023) addressed a point that it said was raised for the first time in the reply, and I permitted the Applicant to respond to that letter by 30 March 2023, which he did.  Both replies were put in the form of affirmations.

6.  Having considered the various materials, I am of the view that this matter can be dealt with on paper.  This is my Decision.

B.  Background

7.  As Mr Lam has identified, the material facts of the case are conveniently set out in §§1-10 of the Determination.  For present purposes, the following summary will suffice.

8.  The Applicant is the owner of Flat 423 of Tin Yue House, Tin King Estate (“Property”).  It is apparently immediately above Flat 323 in the same building (“Lower Flat”).

9.  On 15 July 2020, a complaint of a suspected water leakage from a defective drainpipe was received by the Independent Checking Unit (“ICU”) of what was then the Office of the Permanent Secretary for Transport and Housing (Housing), now known as the Office of Permanent Secretary for Housing.  On 27 November 2020, officers of the ICU attended at the Lower Flat for investigation, and discovered that there was water leakage from the drain pipe (“Pipe”) which was for the use of the bathroom of the Property.

10.  Though chronologically out of order, I note that the ICU’s report of the investigation carried out on 27 November 2020 was later provided to the Applicant by email on 30 November 2022 (after the date of the Determination, and apparently pursuant to the Applicant’s access to information request).

11.  On 2 March 2021, the ICU (for the BA) served the Repair Order upon the Applicant, requiring the Applicant to repair or renew the Pipe.

12.  The Applicant appealed against the Repair Order.  Following a preliminary hearing on 31 May 2022, the BAT gave its Determination on 19 September 2022, dismissing the Applicant’s appeal with costs to the BA.  The Determination held that the issuance of the Repair Order by the BA was correct and lawful.

13.  However, subsequently, and due to a change in circumstances, the Pipe was no longer in defective condition and the Repair Order was withdrawn by the ICU/BA on 24 November 2022.  The letter of that date stated:

Due to a change in circumstances, the pipe is no longer in a defective condition.  I am prepared to withhold further enforcement action for the time being and to withdraw my Order.  I will forward this document to the Land Registry for registration in the property record.

14.  In consequence of that, the BAT made an order on 2 February 2023 that the Applicant should not pay the costs of the appeal.  (It can be noted that the varied costs order was made after the commencement of the current application for leave to apply for judicial review.)

C.  Intended Grounds of Review

15.  The Applicant’s grounds of review are set out in the Applicant’s affirmation filed in support of this application.  There are 9 intended grounds of review, the summary of which I adopt in part from Mr Lam’s initial response, with my own additions.  The intended grounds are as follows:

(1)  Ground 1: The Repair Order was contrary to the Building Management Ordinance Cap 344 (“BMO”).  By considering the definitions of “drains”, “sewers”, “waste pipes” and “ducts”, the Pipe was a “common part” of the building.  Hence the Repair Order should have been served on the Estate Management Office of the building.  There is no law that says the BA does not need to comply with the BMO.

(2)  Ground 2: The Repair Order was issued in violation of the BO.  Considering the definitions of “drain” and “water pipe”, a water pipe is not a “drain”, and section 28(3) of the BO does not empower the BA to deal with water pipes.  In other words, the BA had no power to issue the Repair Order under that section.

(3)  Ground 3: Section 13(1) of the Public Health Municipal Services Ordinance Cap 132 (“PHMSO”) places “drain” within the same category as “pond”, “open ditch”, “watercourse”, “cesspool”, with functions like “collection” of filth etc and which can be “covered or filled up” if necessary.  By way of contrast, the Pipe was for the purpose of discharging water from the bathroom and did not have the function of collection and could not be filled up.

(4)  Ground 4: The EB Division Manual was the BA’s internal policy document, and cannot contravene or expand the power given to the BA under the BO.  Nor can subsidiary legislation contradict or expand the power conferred by primary legislation.  The phrase “defective drainpipes above ground” is not referring to drain pipes in a building.  There is a description of the ground surface outside the building in section 33(2) and (3) of the Building (Construction) Regulation Cap 123Q (“B(C)R”).

(5)  Ground 5: As can be seen from (1)-(4) above, by ruling that the Repair Order was correct and lawful, the Determination was clearly wrong and should be overruled.

(6)  Ground 6: The Determination did not consider the procedural impropriety that there was no inspection of the Applicant’s flat before issuance of the Repair Order.  Making investigation without collecting evidence brings doubts to the evidence.

(7)  Ground 7: The Determination did not consider the non-disclosure of facts in the BA’s representation.

(8)  Ground 8: After the Applicant submitted his objection to the BA’s application for costs to the BA, the Repair Order was withdrawn on 24 November 2022, but the costs order still stands.

(9)  Ground 9: The Applicant also seeks damages claiming that the property price fell considerably as the Property was subject to encumbrance.  The Applicant has sought to raise this ground to counter the BA’s position that the intended challenge has become academic.

16.  In §10 of his first affirmation, the Applicant also makes reference to the request he made for a copy of the investigation report, and that he would report to the court when there is a substantial reply.  This is obviously not exactly an intended ground of review, but in fact he had the investigation report by the time he commenced this application.

17.  The relief sought in the Form 86 is: (1) a declaration that the Repair Order was illegal; (2) an order quashing the Determination; and (3) an award of damages.  The first form of relief is in effect what was sought by the Applicant in the appeal to the BAT, but refused by the Determination.

D.  Whether Merits in Intended Grounds of Review

D.1    Challenge is Academic

18.  In so far as the Applicant seeks to challenge the Repair Order, that application must fail for one or a combination of the following reasons:

(1)  First, the Repair Order has been superseded by the Determination, as a result of the two tier system comprising the original issuer, the BA, and the statutory appellate body, the BAT.  Had the Applicant sought to challenge the Repair Order alone, that challenge would have failed on the basis that there is an available alternative remedy in an appeal to the BAT.  Indeed, the appeal procedure provided for in the BO is for a review in the nature of a rehearing, to allow the BAT to confirm, vary, reverse or make such orders as it thinks fit in relation to the merits, based on the materials placed before it.  In short, where the Applicant has exercised the statutory right of appeal against the Repair Order, it follows that the Repair Order is in principle not amenable to judicial review.

(2)  Secondly, the Repair Order has in any event been withdrawn.  Hence, there is no relevant extant decision that can be the subject of challenge.

(3)  Thirdly, to put it another way, any intended judicial review challenge to the Repair Order is entirely academic.

19.  I also agree with Mr Lam that consequence of the withdrawal of the Repair Order is that the Determination (which confirmed it) also lapsed, or in effect fell away.  This point was recognised in practice by the BAT’s revisiting of its previous costs order to reflect the fact that the Repair Order was no longer sought to be upheld by the BA.  Therefore, any intended judicial review challenge to the Determination has also become academic.

20.  Whilst I acknowledge that there are circumstances where the Court will nevertheless consider a potential judicial review, even if the particular matter has become hypothetical or academic, I do not see anything in this case which would point in that direction.

21.  The consequence of the above points is that the challenge is either to a decision which is not amenable to judicial review and/or is a challenge which has become academic, so that the application for leave to appeal for judicial review stands to be dismissed for those reasons alone.

D.2    No Merits

22.  Nevertheless, I can also consider the merits in the intended grounds of review.  In short, there are no identified reasonable arguments with any realistic prospect of success that there has been a public law breach.

23.  Mr Lam submits that Grounds 1 to 5 are new grounds/arguments not raised by the Applicant before the BAT.  The Applicant submits (in his reply to the initial response) that these are not new Grounds, because he did put forward to the BAT an argument on violation of the law.  The Applicant submits that was recognised by the BAT Chairman in a passage from the transcript of the appeal preliminary hearing which he quotes. That passage refers to the Applicant’s argument being that the Repair Order was “unfair and the procedure is improper”, or was “unfair, unreasonable … [not complying with] the requirements of the law”.  But I doubt those broad descriptions really identified the arguments as are now intended to be raised in Grounds 1 to 5.

24.  It is a settled principle that an applicant is not permitted to raise in a judicial review an argument not run before the tribunal, here the BAT.  The rationale for this principle is that the BA and the BA team would not have been aware of the argument and would not have had the opportunity of considering it or making a response to it, where it may be that if it had been raised in the BAT, the proceedings there would have been conducted differently: see, Blendoran Ltd v Appeal Tribunal (Buildings) (unreported, CACV 196/2016, 20 October 2017 at §§28-29.

25.  It might be said that the Applicant is now seeking to give detail to the points he trailed at the BAT hearing (and which he says he had little opportunity to develop).  I also see the point that Grounds 1 to 5 perhaps seek to raise more legal arguments – which may not be factually sensitive – but that is not to say that the BA, or the BAT, could not be prejudiced by the Applicant seeking to raise the detail of these arguments – for the first time in an application for leave to apply for judicial review.

26.  Nevertheless, Mr Lam has in fact been able to address the arguments – and without identifying any prejudice to the BA, or how the proceedings before the BAT might have been conducted differently – and I shall do the same.

27.  Ground 1: The power of the BA to issue the Repair Order was conferred upon the BA by the BO.  The relevant provisions and definitions are to be found in the BO, and not a different ordinance such as the BMO.  The question is not, as the Applicant seems to suggest, whether the BA has to comply with the BMO.  There is no reasonable argument on Ground 1.

28.  Ground 2: The Applicant’s argument is that the BO gives the BA power to handle defective drains and sewers, not defective drain pipes or water pipes.  As he puts it, it is ‘to compare apples and oranges’.  The argument is based on the definitions in section 2 of the BO and the wording of the Repair Order.  Section 2 defines “drain” and “water pipe” as follows:

drain (排水渠) means a drain used for the drainage of one building and any buildings and yards appurtenant thereto

water pipe (水管) means any water carrying pipe and fittings thereto other than a drain or sewer …

29.  As to the Repair Order, the Chinese version materially states (emphasis added):

本人認為上述處所的排水渠欠妥

2.  本人現行使《建築物條例》第28(3)條所賦予的權力，命令你 (即業主) 在2021年3月30日前的一段期間，進行以下工程：

(a)  修葺或更換破損的排水管。

(上述破損排水管的位置在夾附相片上顯示，以資識別。)

30.  It appears that the Applicant’s focus is on the on the terms “排水渠” and “排水管” used in the Chinese version of the Repair Order.  The corresponding terms in the English version of the Repair Order are “drains” and “drain pipe”.  The English version reads (emphasis also added):

I am of the opinion that the drains of the above premises are in a defective condition.

2.  In exercise of the powers vested in me by section 28(3) of the Buildings Ordinance, I HEREBY ORDER you as owner to carry out, within a period expiring on 30 March 2021, the following works:-

(a)  Repair or renew the defective drain pipe.

(The location of the defective drain pipe described above is shown on the photograph(s) annexed hereto, for the purpose of identification only)

31.  I do not think there is any reasonable argument against the fact that the Pipe referred to in the Repair Order was “used for drainage”.  Therefore, it was a “drain”, and not a “water pipe”.  Ground 2 is not reasonably arguable.

32.  Ground 3: Again, the Applicant misplaces reliance on a different ordinance than the BO.  The PHMSO – which, as its title identifies, is concerned with public health and municipal services – is not relevant to the issue by the BA of a repair order under the BO.  Ground 3 is not reasonably arguable.

33.  Ground 4: It is correct that the EB Division Manual, being the BA’s internal policy document, cannot contravene or expand upon the powers conferred on the BA under the BO.  But, other than by reference to the above arguments which I have already dismissed, it is not clear how the Applicant suggests that there has been the use of the EB Division Manual so as to contravene or expand on the statutory powers.  Further, the Repair Order in question in this case is not in any way related to those matters as might fall within section 33(2) and (3) of the B(C)R as referred to by the Applicant.  That section relates to floor and adjoining ground, and the appropriate protection against moisture penetration, and for proper drainage of surface water in those circumstances.  Ground 4 is not reasonably arguable.

34.  Ground 5: This is not really a separate Ground, but is the summary or conclusion of the previous four grounds.  In light of my above findings, Ground 5 is not reasonably arguable.

35.  I can then deal with the remaining intended Grounds 6 to 9.  Grounds 6 and 7 were the Applicant’s main focus at the hearing before the BAT.

36.  Ground 6: The Applicant’s complaint is that his request for inspection of the Lower Flat was not entertained, and that there was no inspection of the Property, do not give rise to any identifiable public law wrong.  I agree with Mr Lam that the BA was not under any legal obligation, nor did it have any power, to allow the Applicant to inspect other premises.  In any event, during the hearing before the BAT, the BA gave evidence as to the Pipe and the damage to it, with reference to photographs. The Applicant had and took the opportunity to deal with that evidence, apparently even to the extent of suggesting that the BA’s evidence was fraudulent.  Ultimately, and it was a matter for the BAT, the BAT accepted the evidence in its Determination.  Ground 6 is not reasonably arguable.

37.  Ground 7: The Applicant suggests that the BAT failed to take into account that the BA was hiding the truth in the representations dated 15 June 2021.  Again, it can be pointed out that the Applicant had the opportunity to reply to and comment on the BA’s evidence, and the extent to which he might suggest any missing materials should impact the BAT’s Determination.  I have also already noted that, pursuant to an access to information request, the Applicant was subsequently provided with the investigation report and surrounding materials.  The Applicant had those materials in advance of commencing this application for leave to apply for judicial review, but has made no particular comment on them.

38.  Further, even if there were any procedural impropriety (Ground 6) or any non-disclosure (Ground 7), that would have been cured by the preliminary hearing before the BAT.  As the Applicant has emphasised in his reply submissions, his own submissions to the BAT elaborated on what fact he said had been concealed, in detail.  The Applicant has suffered no prejudice.  Ground 7 is not reasonably arguable.

39.  Ground 8: This complaint in effect fell away when (albeit after the commencement of this application) the BAT ordered that the Applicant should not pay the costs of the appeal before it which led to the Determination.  The prior costs order does not still stand.  Ground 8 is now academic and/or the gravamen of any prior complaint has been cured by the subsequent order.  Further, the appropriate costs order fell to the exercise of discretion by the BAT, and making what is in effect a no order as to costs in the circumstances does not seem to me to be arguably impure double on any public law ground.  There is, therefore no reasonable argument on Ground 8.

40.  Ground 9: It is not reasonably arguable that the Applicant has suffered any loss in the circumstances.  Real property valuations fluctuate.  In the Form 86 and supporting affirmation, the Applicant did not suggest that he would have sold the Property during any materially relevant period, nor even that he attempted to do so.  The Applicant remains resident in the Property.  As to the listing reference and electricity meter references provided in the reply submissions, they seem to me to relate to different property and do not assist the Applicant for present purposes.

41.  In any event, where there was no arguable public law breach – and the Repair Order was confirmed by the Determination, but subsequently withdrawn upon a change of circumstances – there is no causal connection between any property value fluctuation and any public law breach on the part of the BAT (or the BA).

42.  The further claim for damages for mental suffering, raised in the Applicant’s reply submissions is similarly not reasonably arguable.

43.  In conclusion, there are no reasonably arguable grounds put forward as would justify the grant of leave to apply for judicial review.

E.  Result

44.  One decision (the Repair Order) the subject of the intended challenge has been withdrawn in any event.  Consequent upon that, the other decision (the Determination) the subject of the intended challenge has in effect fallen away.  The relevant cost consequences have been amended by the BAT to reflect that fact.  The intended challenge is, or challenges are, academic.  In any event the appeal to the BAT rendered the Repair Order not amenable to an application for judicial review.

45.  Further, none of the intended grounds of review identify any reasonable arguments with any reasonable prospect of success.

46.  Therefore, the Applicant’s application for leave to apply for judicial review is dismissed.

47.  As to costs, and in the exercise of my discretion in the particular circumstances, I will make no order as to costs.

F.  Postscript

48.  Mr Lam has properly reminded me of my previous decision in Chui Marjorie Che Ying v Appeal Tribunal (Buildings) [2022] 4 HKLRD 5, in which I held that a repair order in respect of drains issued under section 28(3) of the BO should be served on all owners of the building.  He informs me that that decision is now on appeal, due to be heard on 29 June 2023.

49.  I do not think there is any need to await the outcome of that appeal for the purposes of dealing with this application, not least where the material Repair Order in this case has been withdrawn, and the consequent Determination which confirmed it has in effect lapsed, with the costs consequences suitably altered.