DR. LEUNG KAM CHUNG KENNETH v. CHEN HIU YIN

HCAL 1220/2023

[2023] HKCFI 2359

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1220 OF 2023

________________________

________________________

________________________

J U D G M E N T

________________________

A. Introduction

1.  The Applicant’s intended challenge in these proceedings is but a continuation of his complaint in the underlying circumstances, and unfortunately made in the same unattractive tone.  That tone does nothing to improve the merits.

2.  The application arises as follows.  The Applicant is the registered owner of premises (“Premises”)  situated at Rooms C & D, 1/F, Windsor Mansion, 17 Austin Avenue, Tsim Sha Tsui, Kowloon. The Premises were the subject of a complaint for suspected nuisance, namely water seepage from the Premises to the ceiling of the Lobby at the G/F of Windsor Mansion (“Building”).

3.  The Putative Respondent is a public officer representing the Director of Food and Environmental Hygiene (“Director”), responsible amongst other things for investigation of nuisance or water seepage complaints lodged with the Food and Environmental Hygiene Department (“FEHD”).

4.  On 6 July 2023, the Putative Respondent made an application under section 126(2)  of the Public Health and Municipal Services Ordinance Cap 132 (“PHMSO”)  to a Magistrate, seeking entry into the Premises for the purpose of carrying out relevant investigatory works.  That application was granted by the Magistrate by issuing a Warrant (“2^nd Warrant”)  allowing the Putative Respondent and/or officers authorised by the Director to enter the Premises, if need be by force, to execute duties under the PHMSO.

5.  By his Form 86 dated 19 July 2023, the Applicant sought leave to apply for judicial review, apparently to challenge the decision of the Putative Respondent in applying for the 2^nd Warrant (“Decision”).

6.  I gave directions permitting the Putative Respondent to file and serve an initial response, and for the Applicant to reply, and to bring this matter to an oral leave hearing on 18 September 2023.

7.  At the hearing, the Applicant appeared in person (with the benefit of a short written submissions previously filed)  and the Putative Respondent was represented by Mr Alvin Hor, Government Counsel (who had signed the initial response).

8.  At the end of the hearing, I reserved my Judgment, to be handed down later.

9.  This is my Judgment.

B.  Further Background

10.  On 10 January 2022, a complaint was received by FEHD from a security guard of the management office at the Building. The complaint concerned suspected water seepage, specifically identifying persistent water dripping from the affected area of the Lobby, suspected to have originated from the Premises.

11.  As a result, officers of FEHD conducted investigations on 11 March 2022, 29 March 2022, 8 April 2022 and 17 May 2022.  The investigations found water in fact dripping from the affected area or ceiling of the Lobby on 29 March 2022 and 8 April 2022. Moisture Content was found to be above 35% on three of the dates.

12.  It was therefore decided that further investigation and tests were required to confirm the source of water seepage, and whether it originated from the Premises.  That would require entry into the Premises.

13.  Therefore, on 5 May 2022, officers of the Kowloon Regional Joint Office (set up by the Buildings Department and FEHD)  affixed a ‘Notice of Intended Entry’ dated 29 April 2022 outside the Premises, with a copy left in the mailbox, to notify the Applicant that officers of the Joint Office intended to enter the Premises on 11 May 2022 to investigate the water seepage.

14.  However, on 11 May 2022, the Premises were locked and entry could not be made.  Apparently on the same day, and on 17 May 2022, the Applicant wrote complaint letters against the Putative Respondent.

15.  The letter of 17 May 2022, sent by the Applicant to the Director, accused the Putative Respondent of being “a liar”, “dishonest and not a person of integrity”, “entirely ridiculous”, “very irresponsible”, “very unreasonable as well”, “totally lacking in being fair”, “incompetent”, and of having “no brain at all”.  The Applicant also stated that his “friend” had said that the Putative Respondent “is a Stupid idiot with a big S”, as well as being “mentally deficient and unfit for her present post, not to mention to be contender for future promotion”.  The Applicant also stated that the Putative Respondent’s actions “makes it highly suspicious that bribery may be involved”, and suggested referring the matter to the ICAC for investigation if the Director should think fit.

16.  Hence, this was the Applicant’s choice of tone and style of language from the commencement of his engagement with the FEHD and Joint Office.  If it was intended to display intellectual indignation, it instead reads like intellectual arrogance or simply rudeness – both rather less attractive qualities.  It also lies in stark contrast with the suggestion the Applicant now puts forward in these proceedings that the water seepage matter should have been dealt with quickly and easily through friendly discussion or negotiation.

17.  By a letter dated 20 June 2022 and signed by a Leung Siu-hung for the Director, the Applicant was informed as follows:

Thank you for your written message dated 11.5.2022.  Further to our interim reply dated 16.5.2022, please find our reply as follows:

You may wish to know that the objective of JO is to identify the source of seepage by means of systematic investigation through the powers conferred by the Public Health Municipal Services Ordinance (PHMSO)  and the professional expertise of the relevant government departments, as well as the co-operation of the owners and occupants, with a view to requiring the owners concerned to carry out repair in order to abate the nuisance arising from water seepage actionable under the PHMSO.

In general, water seepage investigation will be conducted in 3 Stages by Health Inspectors, Environmental Nuisance Investigators and staff of the private consultants appointed by the Joint Office (GAO)  respectively.  Stage I investigation work is to confirm the existence of public health nuisance.  JO staff (Health Inspector or Environmental Nuisance Investigator)  will visit the complainant’s premises to record the condition of the seepage location and other relevant information.  If the moisture content of seepage area is found to be or exceed 35% and the premises of other owners are suspected to have caused the seepage problem, Stage II investigation will be carried out.  One or more tests will then be conducted by JO staff depending on the circumstances of each case.  If a case is so complicated that the source of seepage could not be identified immediately after Initial Investigation, JO will proceed to Stage III Professional Investigation (normally by JO’s consultants).

Regarding the captioned complaint, staff of this Joint Office carried out investigation at captioned location [i.e. the Lobby of the Building] on 29.3.2022, 8.4.2022, 11.5.2022 and 17.5.2022 respectively. The investigation results revealed that the seepage persisted at the ceiling of the ground floor lobby of the captioned location.

Since the affected areas of the lobby was found situated below your premises [i.e. the Premises], hence our authorised officer, Health Inspector, Ms CHENG Hiu-yin [sic] had visited your premises for several times for the purpose of conducting investigation of the said water seepage complaint since March 2022 but our authorised officer still could not gain entry into your premises up to this moment.

Further to the “Notice of Intended Entry” dated 29.4.2022 and “Notice of Intention to Apply for Warrant of Entry” dated 16.5.2022 served to the owner/occupier of [the Premises] earlier for the purpose of conducting investigation of the captioned water seepage complaint, we would like to reiterate that our Health Inspector has a right to enter your premises to perform the aforesaid function under Section 126(1)  of the [PHMSO].

In order to minimise the disturbance which may cause to you, please be informed that we would arrange the investigation at your premises for Stage II and Stage III to be on the same day.  In this regard, we should be grateful if you would make necessary arrangements to enable our authorised officer, Ms CHEN Hui-yin and staff of the consultant appointment by the Joint Office to gain entry to your premises at 2:30 p.m. on 29.6.2022 (Wed.)  for investigation.  Please note that if our authorised officers still could not enter your premises on the aforesaid schedule, we will apply to the Court under Section 126(2)  of the [PHMSO] for a warrant to effect entry into your premises without any further notice.

Apart from the above, as the mains or flushing water pipes at the captioned location were suspected to be defective and which might be one of the sources causing water seepage to the said lobby, please be informed that we have referred it to the Water Supplies Department for their parallel investigation.

Should you wish to fix an alternative time/date for the visit or have any queries, please feel free to contact our Health Inspector, Ms. CHEN Hui-yin at [telephone numbers given] during office hours.

18.  That letter clearly explained to the Applicant the relevant circumstances and the reasons for the desired investigation at the Premises, and the relevant statutory powers.  It was informative and also plainly courteous.  It was, again, unfortunately not responded to in like manner.

19.  Instead in response, the Applicant sent a letter to the Director dated 22 June 2022.  In short, the Applicant refused to allow the requested entry to the Premises.  However, the letter was actually headed ‘Formal and Serious Complaint against Leung Siu-hung’, and stated that the purpose of the letter was to lodge a formal and serious complaint against junior staff Leung Siu-hing.  Mr Hor has characterised the tone of the letter – in my view fairly – as being “in extremely abrasive and personal language”.  But, as with the earlier correspondence, the seeds of the Applicant’s present complaint are also sown in that letter, including his objection to not having been told the identity of the complainant about water seepage, nor the particular results of the officers’ visits to the Lobby of the Building for investigation.

20.  The Applicant stated that his overall impression and complaint was that both officers were not dealing with problems in the correct manner, and had not set out their priority correctly.  He said that both of them had failed to address the core issues mentioned in his previous letters, which he described as sad and unfortunate.  His conclusion paragraphs were as follows:

Accordingly since the two junior staff of yours failed to address to the above core issue and replied to my questions I will NOT entertain such irrelevant request.  I definitely will not open my door to let your staff in on 29 June 2022.  There is no such need as well is no merits at all for any court application for house entry.  My house is my castle.

Furthermore, both of them namely Chen Hui-yin and Leung Siu-hung are so lazy that they do not bother to look at the floorplan to shortlist which unit they wished to enter.  The fact is that the seepage is from one site, and how come they requested entry to both units?  This is most inappropriate and revealed their extreme laziness.

I feel sorry for your good sellf [sic] that you have such inferior and pathetic junior staff working for you.  They failed to resolve the issues in the right manner with the right priorities.  Henceforth they are wasting the resource of the Department such as the manpower, time and money as well as causing unnecessary nuisance to members of the general public.  It is not the right way to handle complaints.

You need to sharpen them up.

21.  In the meantime, as a result of the inability to obtain entry to the Premises on 11 May 2022, a ‘Notice of Intention to Apply for Warrant of Entry’ dated 16 May 2022 was fixed outside the Premises, with a copy left in the mailbox, on 17 and 25 May 2022.

22.  Given the Applicant’s lack of cooperation – and indeed in light of his clear statement that he would refuse entry to the Premises – the Putative Respondent applied for a ‘Warrant to Effect Entry into Premises’ (“1^st Warrant)  on 13 July 2022, which was granted on the same day.  Notice was given to the Applicant on 3 and 4 August 2022 of the intended execution of the 1^st Warrant on 16 August 2022.

23.  In the meantime, by letter dated 29 July 2022, the Joint Office had again written to the Applicant in response to his various correspondence, and in particular his letter of 17 May 2022.  Amongst other points made in the letter, which sought again to explain the approach to water seepage investigation, the letter pointed out that through the non-destructive tests already performed Room 1B at the Building had been eliminated as a possible source of nuisance, so that Rooms 1C and 1D (i.e. the Premises)  became the remaining possible source of nuisance for further investigation.  Near the end of the letter is a paragraph, including the last sentence upon which the Applicant has sought to place some reliance (see below).  In full, the paragraph reads as follows:

In fact, identification of the possible source(s)  of water seepage is not a straightforward matter and is often complicated by the fact that there may be more than one possible source of water seepage in any single case.  Therefore, cooperation of the concerned owners/occupiers is critical for Joint Office’s staff to entry into their premises to conduct multiple non-destructive tests to identify the source of water seepage.  As for this case, we hope you could understand that HI CHEN was just following the departmental procedures and guidelines of the Joint Office to conduct investigation of the subject water seepage complaint with no inclination to either side of the parties involved.  Nevertheless, we have briefed HI CHEN that she should strengthen her communication with the complainant and under-complainant during the complaint investigation process to avoid the generation of any kind of misunderstanding among all parties involved.

24.  By email dated 14 August 2022, the Applicant informed the Joint Office that he would not be available on the proposed warrant execution date of 16 August 2022.  However, the main thrust of that email was actually to make “formal and serious complaints” against yet another named officer of FEHD.  By letter dated 19 August 2022, the Joint Office requested the Applicant to provide, on or before 6 September 2022, an alternative date for the intended execution of the 1^st Warrant. The letter also again courteously provided information about why the procedures being conducted under the PHMSO were being conducted, as well as the relevant powers invoked.  The Applicant failed to provide any alternative date, nor indeed any reply at all.

25.  On 7 and 8 September 2022, the Applicant was informed of the intended execution of the 1^st Warrant on 16 September 2022.  On that day, no one answered the door.  With the assistance of the Police, the 1^st Warrant was executed via forcible entry as permitted under the 1^st Warrant, and officers of the Joint Office entered the Premises to conduct tests and investigation. The tests and investigation comprised measuring moisture content, and conducting colour water tests, ponding tests and spray tests at the Premises.

26.  Follow-up inspection was conducted on various days in October and November 2022.  In brief, fluorescent effect under UV light for colour dye used in the ponding test and spraying test in the Premises on 16 September 2022 was detected at the affected area of complaint on 11 October 2022.  Based on that, the Director was satisfied of the existence of water seepage from the Premises to the ceiling of the Lobby of the Building, and that the water seepage amounted to nuisance.

27.  Therefore, a ‘Nuisance Notice’ dated 6 December 2022 was issued to the Applicant under section 127(1)  of the PHMSO, requiring him to abate the nuisance and carry out remedial works as specified within 28 days.

28.  Investigation of the affected area of the Lobby revealed moisture content below 35% on inspection visits in November 2022, and February, March and April 2023. But subsequent visits on 9 May 2023 and 13 June 2023 revealed that the moisture content returned to above 35%, which indicated that water seepage persisted.  Given that the water seepage had not been resolved, further inspection and tests were sought to be conducted to ascertain whether the Applicant had carried out any repair works in compliance with the Nuisance Notice.

29.  However, officers of the Joint Office failed to gain entry to the Premises on three dates in May 2023, notwithstanding that a ‘Notice of Intended Entry’ had been issued to the Applicant on 11 and/or 12 May 2023.  Shortly before that, by letter dated 10 May 2023, the Applicant wrote to the Joint Office (copied to the Ombudsman)  in essence complaining about the Putative Respondent, who he accused of making false statements under oath, professional misconduct and misfeasance in public office.

30.  In more direct response to the ‘Notice of Intended Entry’ dated 11 May 2023, the Applicant sent an email dated 24 May 2023 to the Joint Office, copied to the Ombudsman.  He referred to the previous entry into the Premises on 16 September 2022, and asked why Notices were being issued again.  He complained about not having received replies to previous letters, nor knowing what had been the findings of the previous investigation.  He concluded by asking to be advised before either officer contemplated further action such as to apply to the Court again for Warrant to Effect Entry, because they had made that Entry before.

31.  By slightly earlier letter dated 22 May 2023, the Joint Office had informed the Applicant, amongst other things, that – unless he were to notify opposition to the arrangement – the Joint Office would treat his request for relevant records of investigations including photos and or measurements as a request under the ‘code of access to information’.  In the absence of any opposition, the FEHD subsequently informed the Applicant that certain documents relating to the Stage I and Stage II investigations were available for his collection upon payment of the copying charge of HK$56.  The Applicant later stated that he would not pay for those copies.

32.  In light of the inability to gain entry to the Premises, a ‘Notice of Intention to Apply for Warrant of Entry’ was affixed outside the Premises, with a copy in the mailbox, on 23 May 2023.  That notice was also sent by registered post, but was unclaimed and returned.  As no reply was ever received from the Applicant, and no arrangements were made for entry to the Premises, it was not possible to conduct the necessary investigations and tests to verify whether there had been compliance with the Nuisance Notice.

33.  In so far as, in the initial response at §§21-22, Mr Hor might be thought to have suggested that no reply at all was ever received to the ‘Notice of Intention to Apply for Warrant of Entry’, that is not correct in light of the Applicant’s email dated 24 May 2023 (see above).  But, I think what Mr Hor was emphasising was that no alternate arrangements were made for entry into the Premises, hence the potential need for a further warrant.  Further, I would note that the notice given 23 May 2023 was not a response to and pre-dated the 24 May 2023 email.  In so far as it is necessary for me to do so, I expressly reject the Applicant’s suggestion that there has been any attempt by Mr Hor or by the Putative Respondent to mislead the Court, or that the Putative Respondent has somehow committed the crime of perjury.

34.  I also note that the Applicant wrote to the Registrar at the Magistrates’ Court by letter dated 26 May 2023, with the stated purpose of alerting the Magistrate who would happen to deal with the possible second application for a warrant, so that the Magistrate would not grant the warrant in the first instance without getting into the details of the issue, and asking to be informed immediately so that he could be given a chance to defend against such an unreasonable application.  The letter to the Magistrates’ Court was apparently not copied to the Joint Office, but rather to the Chief Justice.

35.  It was in the above circumstances that on 6 July 2023 the Putative Respondent made an application to a Magistrate for a warrant, which was granted on the same date (i.e. the 2^nd Warrant).  If the Magistrate saw the Applicant’s letter dated 26 May 2023, the view was presumably taken that no notice need be given to the Applicant.  I am also informed that most of the above factual information was disclosed to the Magistrate on the application for the 2^nd Warrant.  As already stated, it is the Putative Respondent’s decision to make that application (i.e. the Decision)  which is the subject-matter of the intended challenge in these proceedings.

36.  I am also informed that, at least by the date of the initial response filed by Mr Hor on behalf of the Putative Respondent, the Nuisance Notice had apparently not been complied with by the Applicant.

C.  The Intended Grounds of Challenge

37.  The Form 86 is a lengthy and somewhat repetitive document.  But the specified relief sought probably identifies the core or main thrust of the Applicant’s complaints, as follows (sic):

1.  Certiarari : An Order to set aside the Warrant to Effect Entry into Premises issued by Magistrate Lau Suk Han dated 6 July 2023.

2.  Prohibition : An Order to prevent the Respondent Ms. Chen Hiu Yin to abuse her power and misuse the Laws by applying Warrant to Effect Entry into Premises in a legally invalid manner namely by failure to provide the name of the Complainant and his or her written Statement of Complaint for the perusal of the Court and the Applicant.  Also the Respondent should be prohibited to apply such Warrant without firstly performing her duty by observing the Spirit, Policy and Advocation of the BD/.FEHD Joint Office to endeavour to organise a meeting between the Complainant and the Applicant so as to resolve the present alleged water seepage issue in a friendly and expeditious manner.  Such preferred approach will also prevent the wasting valuable resources of the Court, the BD/FEHD Joint Office and the Applicant.

38.  I agree with Mr Hor that a fair summary of the Applicant’s lengthier explanation of the grounds identified can be summarised as follows:

(1)  The application for the 2^nd Warrant was unlawful because the Putative Respondent had failed to provide the name of the complainant and his or her written statement of complaint for perusal by the Magistrate and the Applicant.

(2)  The application for the 2^nd Warrant was unlawful because the Putative Respondent had failed to organise a meeting between the complainant and the Applicant to resolve the alleged water seepage prior to making the application.

(3)  The Magistrate’s decision in granting the 2^nd Warrant was wrong because she had failed to consider relevant factors and had considered irrelevant factors.

39.  I think the first two points are at the core of the Applicant’s concerns, as shown by his further written materials and his oral submissions.  Also, with the benefit of the subsequent written materials provided by the Applicant, I think that it can be seen that wrapped up in those points is the Applicant’s complaints that: the detail and proof of the alleged water seepage has never been provided to the Applicant, contrary to a duty to do so; the Putative Respondent’s conclusion that there was a continued nuisance was erroneously made; and the Putative Respondent has further acted aggressively and oppressively, abusing her power and misusing the law.

40.  In his written opening submission provided in advance of the hearing, the Applicant suggested that, in a judicial review, the issues being looked at can be grouped into four main categories, namely:

1.  The most important of all is: Whether the Decision Making Procedure was made in a proper manner?

2.  Whether it is the right Decision?

3.  Whether the Decision Making Procedure was made in an aggressive and oppressive manner? And is there any abuse of power and misuse of the law?

4.  Whether there are better alternatives to this Decision?

41.  With respect to the Applicant, who is not legally represented, this is at least a partial misunderstanding of judicial review proceedings.  In essence, judicial review is concerned with the integrity of the decision-making process.  It is generally not concerned with whether the impugned decision was ‘correct’ or ‘right’, nor whether there were any ‘better alternatives’.  It is incumbent on an applicant for leave to apply for judicial review to identify what are said to be public law errors in the decision-making process.  Further, in order to obtain leave, the applicant must identify grounds of review which are reasonably arguable with reasonable prospects of success.

42.  Before turning to the merits, though, I can address in the next section of this Judgment the question as to whether the Putative Respondent’s Decision – namely to apply for the 2^nd Warrant – is amenable to judicial review.

D.  Is the Decision Amenable to Review?

43.  No, it is not.

44.  This is because it is settled law that the Court will not ordinarily entertain an application for judicial review as regards a step or action which does not give rise to any substantive consequence, or is not a decision of a “decisive nature”: see, for example, Financial Secretary v Felix Wong (2003)  6 HKCFAR 476 at §§14, 93-94; and my own recent decision in Benver Co Ltd v Appeal Tribunal (Buildings Ordinance) [2023] HKCFI 842 at §§38-39.

45.  Reference can also be made to Keen Lloyd Holdings Ltd v Commissioner of Customs and Excise [2016] 2 HKLRD 1372 at §§31 and 44, where in similar circumstances it was stated that it is difficult to see how it is appropriate to proceed by way of judicial review to challenge the decisions to apply for warrants after the grant of the warrants and their full execution. By that stage, the decision to apply for a warrant is overtaken by what has happened after the warrant was issued and the execution of it.  Indeed, the decision to apply for a warrant would not by itself bring about substantive legal consequences, and as such is not a decision amenable to challenge by way of judicial review.

46.  Further, and in any event, there is no doubt that the Putative Respondent had the power granted under section 126(2)  the PHMSO to make the application for a warrant of entry.  It then fell to a magistrate to determine whether a warrant should be granted, once satisfied on sworn information in writing that: (1) admission to the relevant premises has been refused or refusal is apprehended; (2) there is reasonable ground for entry into the premises for any of the purposes referred to in section 126(1), which includes amongst other things the purpose of carrying out any tests; and (3) notice of the intention to apply for warrant has been given to the occupier of the premises.

47.  Plainly, on the facts, it was also perfectly open to the Magistrate to have been satisfied as to all three matters.  The Applicant had refused admission to the relevant premises, and further refusal could properly have been apprehended.  In light of the results of the first investigations and testing upon entry to the Premises, and doubt as to compliance with the Nuisance Notice where continued seepage was evident, there was reasonable ground for entry.  Further, notice of intention to apply for warrant had been given.

48.  In so far as it is necessary to say so, there is no reasonably arguable public law grounds to interfere with the Magistrate’s decision to issue the 2^nd Warrant. There was no error of law on the part of the Magistrate disclosed either on the face of the 2^nd Warrant or in any of the materials now before the Court.

49.  This alone is determinative of the Applicant’s application.

E.  No Merits in Intended Challenge

50.  In any event, there are no merits to the intended challenge.

51.  As identified above, the core complaints made by the Applicant relate to his argument: (1) that it was necessary for the complainant to have been identified, and for the complainant to have provided a signed written statement, and for the complaint to have been given an identification number, without which it was impossible or improper for the Putative Respondent to have acted on the complaint; and (2) the Putative Respondent ought to have arranged a meeting between the complainant and the Applicant to resolve the alleged water seepage prior to making the application for the 2^nd Warrant.

52.  Whilst the Applicant has suggested that it is improper for the identity of the original complainant about the water seepage not to have been identified to him, and for there to have been no written signed statement taken from the complainant, there is nothing in this point. The simple fact is that, once a complaint had been received, the Joint Office came under a duty to investigate.  Investigation by site visit was conducted, on various dates, and water seepage was seen by the officers themselves.

53.  By that point, the identity of the original complainant to an extent became irrelevant.  Further, the complainant in this case was not another owner or occupier in the Building in the usual sense. What was necessary was to seek to identify the source or sources of the water seepage, and the premises immediately above – i.e. the Premises – were an obvious potential source (though I also note that the Putative Respondent and other officers had not closed their minds to the possibility of sources other than from the Premises).  In those circumstances, I do not think I need specifically to deal with Mr Hor’s submission (the force of which I acknowledge)  that the identity of the complainant was in any event personal and private data to which the Applicant was not entitled.

54.  Further, for reasons touched on below, I do not think the Applicant needed to know the name of the complainant in this case in order for him to have entered into any relevant discussion about seeking to resolve the water seepage issue.

55.  I also reject the Applicant’s suggestion that because the original complainant had not himself made a written statement identifying the exact site and dates of the water seepage, with photographic support, then that means the Putative Respondent was somehow “guessing”.  There was obviously no need for any guessing, when the relevant officers went to the Building and saw for themselves the water seepage and its location, of which they took photographs and made reports.

56.  Where the Applicant has gone so far as to suggest that the absence of a complaint identification number means that the Putative Respondent has forged the original complaint, I expressly reject that suggestion as utterly without basis.  There was no need to have investigated a potential water seepage at the Lobby of the Building unless a complaint had been received, and when investigation was pursued an actual water seepage location was identified.  That is what commenced the investigations.

57.  In any event, there is no express requirement in the relevant section of the PHMSO requiring an applicant for a warrant to disclose to a magistrate the identity of a complainant.  Nor does a magistrate require the identity of the complainant prior to being satisfied that an entry warrant could and should be granted.

58.  In this case, the Magistrate had been informed of the matters required under section 126(2)  of the PHMSO – by reference to the previous factual matters and correspondence. As required by that section, the grant of the 2^nd Warrant was based on an assessment as to whether the requirements of the section had been satisfied.  There was clearly nothing unreasonable or irrational – whether in the public law sense, or otherwise – in forming the view that it was appropriate to apply for a warrant, and in forming the view that it was appropriate to grant the 2^nd Warrant.

59.  In so far as the Applicant complains that he was not provided with the various evidence, he was in fact reminded that he could make an access to information request, and later one of his letters was treated as having made such a request.  In the end, the Applicant chose not to pay the minimal HK$56 charge to obtain documents produced in response to that request.

60.  As to the complaint of the failure to organise a meeting, there is similarly no requirement under the provisions in section 126 of the PHMSO, or elsewhere, for such a meeting to be organised. The relevant duty of the Putative Respondent was to investigate the complaint of water seepage, and to seek to identify its source and how it could be rectified.  If the source was identified but not rectified, the duty would extend to taking further steps to ensure rectification by the person responsible to prevent the nuisance.

61.  I agree with Mr Hor that the Putative Respondent does not act as some sort of mediator, middleman, or conciliatory agent to facilitate negotiations between the complainant and a person who may be responsible for premises from which the nuisance emanates. Of course, there may be circumstances where some form of mediation or facilitating discussions can be of assistance.  But that does not mean that there was a public law failure in this case in failing to organise the meeting the Applicant suggests should have taken place.

62.  The reliance by the Applicant on a pamphlet issued by the FEHD is also misplaced.  What that pamphlet actually suggests is that property owners, who are responsible for the proper management and maintenance of their property, should examine the reason and source of water seepage on their own, coordinating and negotiating with any relevant owner or occupant as to carrying out remedial and repair works at an early stage.  The “spirit” of the pamphlet is that complainants and complainees might seek to resolve matters between themselves – i.e. without needing to involve public authorities.  The pamphlet does not suggest that it is the intent or duty of the Joint Office or FEHD to facilitate private negotiations between property owners.

63.  Indeed, where owners and occupiers of premises are under the duty to abate nuisance caused by them, it ought to be those owners and occupiers who initiate and pursue any relevant negotiation.  If, as the Applicant now asserts, direct contact would help the parties, the Applicant might himself have initiated appropriate direct contact.  But, in this case, there is no suggestion that the Applicant sought to initiate and pursue negotiations direct with any other party.  Instead, he simply sought to shift his duty to abate the nuisance to some other party, including the Putative Respondent.

64.  Of course, against the Applicant’s chosen tone and style of language adopted by him from an early stage, it is frankly difficult to see how the Applicant would ever have engaged in appropriate and friendly or conciliatory discussion with anybody.  It is rather easier to see that perhaps the Applicant thought that he might be able to browbeat or bully the complainant into accepting his point of view, once he realised that was unlikely as regards the Putative Respondent and other public officers.  It is telling that the direct contact that he suggested should have taken place was to help the other parties agree with his own view as to the source of the water seepage.  In other words, the only acceptable outcome for the Applicant of any negotiation or direct contact would have been for everyone to agree with the Applicant’s own point of view.

65.  This leads on to the point that the Applicant suggests that the Decision was wrong.  I have already pointed out that the correctness or otherwise of the Decision is not the subject of the supervisory jurisdiction of the judicial review Court, absent the identification of any reasonably arguable public law error in reaching the Decision.  In any event, where there was evidence of continued high moisture content and seepage, and where previous investigation at the Applicant’s Premises had revealed the Premises as the or a source of the seepage – leading to the issue of a Nuisance Notice – there is no reason for the Court to interfere on the basis that the Decision was somehow not the right decision.

66.  As to the Applicant’s suggestion that the Putative Respondent handled the water seepage issue in “a very high-handed and aggressive way”, that is more than a bit rich coming from him.  Even in his last written submissions, the Applicant continued for example to describe the Putative Respondent as demonstrating her “very clearly the perverted aptitude and personality”.  Just like the water seepage, the Applicant’s inappropriate approach has not abated.  Whereas, in fact, the correspondence given to the Applicant from the Joint Office demonstrates patience and tolerance in the face of the Applicant’s offensiveness, obstruction and intransigence.

67.  Nor is there anything to be gained by the Applicant from the last sentence of the paragraph which I quoted above from the Joint Office’s letter to him dated 29 July 2022.  Whilst it is correct that the letter says that the Putative Respondent has been briefed that she should strengthen her communication, the same paragraph sought the Applicant’s understanding that the Putative Respondent was just following the departmental procedures and guidelines of the Joint Office to conduct investigation of the water seepage complaint with no inclination to either side of the parties involved.  Indeed, the paragraph began by identifying that identification of possible sources of water seepage is not straightforward, and for that reason the cooperation of the concerned owners or occupiers is critical for Joint Office’s staff to enter into their premises to conduct multiple non-destructive tests to identify the source of water seepage.

68.  On the materials, it is the Applicant who has failed to demonstrate any understanding of the Putative Respondent’s role, and who has flatly refused to provide the relevant appropriate cooperation, and he has done so in a deeply unattractive way.

69.  Lastly, whether there were or were not other alternatives to the Decision to apply for the 2^nd Warrant is irrelevant in the absence of reasonably arguable any public law error in reaching that Decision.

F.  Result and Costs

70.  The Applicant has failed to identify any reasonably arguable ground of review with any reasonable prospect of success.

71.  As a result, the Applicant’s application for leave to apply for judicial review stands to be dismissed.  I so order.

72.  As to costs, this is one of those leave applications where it seems to me that the application is of such a nature that it fully justifies an adverse costs order.

73.  At bottom, the Applicant is aggrieved that his Premises have been identified as the possible source of water seepage, contrary to his own view as to the source – and notwithstanding the evidence obtained through investigation (including dye tests)  which provide some evidence that the bathroom at the Premises is at least one source of the water seepage, leading to the issue to the Applicant of a Nuisance Notice, which he appears to have chosen to ignore.

74.  There is force in Mr Hor’s submission that not only was this application ill-conceived and unmeritorious, it might even be regarded as vexatious as continuing the Applicant’s conduct of thwarting or attempting to thwart the Director’s attempts to carry out, through officers such as the Putative Respondent, the relevant duties under the PHMSO.

75.  I also take into account the tone and language used by the Applicant throughout, including in his submissions and other written material made on this application.  When, during the hearing, I suggested to the Applicant that his tone and language was inappropriate and indeed at times abusive, he seemed surprised and asked me where.  When I read back to him some of the passages that I have also quoted above, his only response was to say that he is human and he lost his temper.  I do not think that response is sufficient to explain away the wholly unnecessary rudeness and personal attacks which are evident in almost every communication from him.

76.  I therefore order the Applicant to pay the Putative Respondent’s costs, which I will assess on a summary basis.

77.  Mr Hor has provided a Statement of Costs for Summary Assessment – signed by Ms Emily Kwong Government Counsel who assisted Mr Hor in the preparation of the case – which seeks total costs in the sum of HK$59,526.  However, as the Applicant has not had the opportunity to provide any comments on that Statement, I shall permit him 14 days within which to do so by letter to the Court, copied to Mr Hor.  Thereafter, I shall go on to perform the summary assessment.