MAGIC KEY LTD AND OTHERS v. APPEAL TRIBUNAL (BUILDINGS) AND ANOTHER

HCAL 1931/2018

[2020] HKCFI 1716

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1931 OF 2018

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BETWEEN

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D E C I S I O N

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INTRODUCTION

1.  On 14 June 2018, the Appeal Tribunal (Buildings) (“the Tribunal”) determined that no good cause had been shown for holding a full hearing of the Applicants’ appeals (“the Appeals”) against various buildings orders issued by the Building Authority (“the BA”) more particularly described below, and dismissed the Appeals (“the Determination”). This is the Applicants’ application for leave to apply for judicial review of the Determination.

BASIC FACTS

2.  Green Valley Mansion, 51 Wong Nai Chung Road, Hong Kong (“the Building”) is a 15-storey composite building of which the G/F is used for retail purpose, while the 1/F to 14/F are used for domestic purpose.  There are 4 flats on each floor from 1/F to 14/F.  The occupation permit of the Building (“the OP”) was issued on 30 November 1964.

3.  The 1^st, 2^nd and 3^rd Applicants are respectively the Flat B owners of the 1/F, 3/F and 4/F of the Building.

4.  The Building was one of the targeted buildings designated by the Buildings Department (“the BD”) in its Blitz UBW Clearance Operation 2006.  On 9 June 2006, a letter was issued by the BD to inform the owners and occupiers of the Building that it had been selected as one of the targeted buildings in the said operation, and Maunsell Consultants Asia Limited (“the Consultant”) had been appointed to investigate unauthorized building works on external walls, in common areas and on approved cantilevered slab balconies of the Building.  On the same date, the Consultant also sent a letter to the owners and occupiers of the Building advising them to remove unauthorized building works in or at their premises voluntarily. Subsequently, due to difficulty of access and problems about resources, the intended enforcement action was suspended until 2009, when the Building was again selected as one of the targeted buildings designated by the BD in the Blitz UBW Clearance Operation 2009.  On 20 October 2009, the BD issued a letter to request the owners and occupiers of the Building to remove unauthorized building works in or at their premises and reinstate the same in accordance with the approved building plans.

5.  On 20 May 2010, the BA issued to each of the 1^st, 2^nd and 3^rd Applicants a building order (collectively “the Building Orders”) under s 24(1) of the Building Ordinance, Cap 123 (“the Ordinance”) requiring them to demolish various unauthorized building works in or at their premises and reinstating the parts of the Building so affected in accordance with the approved plans of the Building (“the Approved Plans”) within 60 days of the date of the orders.  The unauthorized building works complained of by the BA and with which this application for leave to apply for judicial review is concerned (“the UBWs”) were described in the Building Orders as -

“A projecting structure attached to the external wall at the re-entrant facing No.43 Wong Nai Chung Road”.

6.  According to the Applicants, the UBWs in or at each of their units consist of 2 adjoining structures, namely

(1) the “South Re-Entrant Structure”; and

(2) the “Verandah Extension Structure”.

7.  The South Re-Entrant Structure is an enclosed structure on the exterior of the Building over what, according to the Approved Plans, was originally a void space between a bedroom and a kitchen.  The enclosure was formed by the construction of an additional floor slab, ceiling slab and wall (with window openings), turning the original void space into a room.

8.  The Verandah Extension Structure is also an enclosed structure on the exterior of the Building over what, according to the Approved Plans, was originally an open, quarter-oval, verandah.  The enclosure was formed by the construction of (i) an extension to the original cantilever floor slab of the verandah to become a rectangular floor slab, (ii) an extension to the original cantilever ceiling slab of the verandah to become a rectangular ceiling slab, and (iii) enclosing walls (with window openings), turning the original open verandah into a room.

9.  It is not in dispute that the UBWs do not appear on the Approved Plans.

10.  Similar building orders were issued to other owners of the Building, including some owners of Flat A and Flat B on other floors of the Building.

11.  On 10 June 2010, NY Architects & Associates, on behalf of the Applicants and other affected owners of the Building (collectively “the Appellants”), lodged a total of 29 notices of appeal to the Tribunal against (inter alia) the Building Orders.

THE DETERMINATION

12.  The Tribunal conducted a preliminary hearing of the Appeals on 16 and 17 November 2017.  The Appellants were represented by counsel and solicitors at the preliminary hearing.

13.  6 grounds of appeal were raised by the Appellants before the Tribunal[1]. The grounds relevant for the purpose of the present application for leave to apply for judicial review[2] are:

(1) “Ground 1” - the Building Orders were a nullity or invalid, the Appellants’ argument relevant for the present purpose being that “[i]n respect of Flats B, the owners are not the correct parties to be served with the Orders”[3]; and

(2) “Ground 5” - the BA defeated the Appellants’ legitimate expectation.

14.  In relation to “Ground 1”, the Appellants argued that there was evidence that the projecting structures in question were erected by the developer of the Building in the 1960s, and they should not be held responsible for them[4]. In support of this argument, the Appellants relied upon:

(1) A report of Mr Robin Howes (a surveyor), who gave the following opinion:

“Flats B, the South re-entrant structures

As shown on the GBP the re-entrant was formed by 3 walls and a tie beam; the beam was no longer visible other than as part of the external wall. External walls of solid construction with windows had been built on all the tie beams enclosing the re-entrants at each floor level, there was a uniformity of construction consistent with the alleged UBW having been constructed at one time by one person…

The balcony extension structures of Flats B

The verandah shown on the GBP as being outside the Servant’s Room had been extended at the same width to the tie beam and this extended open verandah has been enclosed with solid construction with windows on most floors, on others with metal bars, and some of the extended verandah slabs have lightweight canopies. There was a uniformity of construction of the extended verandah slab consistent with the alleged UBW having been constructed at one time by one person; this consistency was lacking in the enclosing wall and the canopies.

Opinion

…

With regard to the re-entrant structures and external wall structures of Flats B there is sufficient evidence of uniformity of construction from an external visual inspection to conclude that the extended verandah slab, projecting from the external wall of Flats B, and the structure within the re-entrant were constructed by one person at approximately the same time.  There is insufficient uniformity to conclude that the extended verandah walls were similarly constructed or the canopies and other projecting structures.”

(2) A witness statement of Mr Cheng Yan Chi Andy, the son of the 3^rd Applicants (the “first owners” of Flat 4B) - according to Mr Andy Cheng, he had been living in Flat 4B continuously for some 51 years since he first moved into that unit in 1965 when he was around 4 years old, and the structures in questions, which he described as “a storage room” and “a portion of the kitchen (including the toilet inside the kitchen)” were already in existence when his family first moved into Flat 4B.

15.  In relation to “Ground 5”, the Appellants contended that the UBWs were constructed with the approval of the BA and they should not be regarded as unauthorized building works.  It was argued, in particular, that:

(1) The alleged UBWs were constructed at the same time (or approximately the same time) as the Building was constructed.

(2) In all likelihood, upon completion of the Building, when the BA inspected the Building, the alleged UBWs were already in existence.

(3) Prior to the issue of the OP, the BA was under a duty to stop any unauthorized construction works, and to refuse the issuance of the OP if the alleged UBWs were unauthorized.

(4) Although the alleged UBWs were not shown on the Approved Plans, the BA issued the OP[5].

16.  On 14 June 2018, the Tribunal determined that no good cause had been shown for holding a full hearing of the Appeals, and dismissed the Appeals.

17.  The Tribunal’s reasons for rejecting Ground 1 can be found in §§25-31 of the Determination:

“[25] Now dealing with the evidence of Mr Howes first. In our view, his opinion does not really take the case of Appellants’ in the Flat B case to the conclusion they have hoped for. Having looked at the photographs taken of the projecting structures in question for the Flat B units [closely], we do not think they are not sufficiently uniform in appearance. For that reason, we have difficulty in accepting Mr Howes’ view that ‘there is sufficient evidence of uniformity of construction from an external visual inspection to conclude that ...... the projecting structures were constructed by one person at approximately the same time’.

[26] But apart from that, there are of course the observations made by Mr. Hui Heung Yeung, a senior building surveyor of the BD in his report following an inspection he made to the Green [Valley] Mansion on 26/7/16. They are as follows:

‘(a) The extent of the projecting structures at Flats 13B and 14B was different from those on the other floors......

(b) A projecting metal cage was erected at Flat 12B. The extent of the projecting structure including the metal cage was larger than those on the other floors.

(c) The projecting structures at Flats 6B, 8B and 12B were built in the form of open cage while the projecting structures at Flats 1B - 5B, 7B, 9B-11B, 13B and 14B were built in the form of a parapet wall with windows installed on top. The size, pattern and location of the windows installed on top of the parapet walls were not the same.

(d) No window was installed on the portion of the projecting structures adjoining the approved rear bedroom at Flats 6B, 9B and 1IB while windows were installed at the same location of Flats 1B-5B, 7B, 8B and 10B.

7. By comparing with the approved plans, portion of the projecting structures was extended from the originally approved verandah slab outside the Servant’s Room. Inspection of the underside of the verandah slab of 1B revealed trace of the original verandah [Photo No.8] and this suggested that this portion of the projecting structures was not likely to be constructed at the same time as the original verandah slab.’

[27] Of course we accept that if there is a conflict or difference in opinion between the experts for the parties, then it should normally be left for a full hearing instead of having it resolved at a preliminary hearing. But this is not such a case. Whilst there is no doubt a difference in the conclusions the two surveyors have arrived at, it is the factual findings or observations they made at their inspection which we are more interested in. For with the two experts’ help, our attention has been drawn to the similarities and differences in the various projecting structures in the Flat B units and we are in as good a position as they were to make our own observation. And with these findings and our own inspection of the relevant photographs, the Tribunal is of course in a position to decide whether there is sufficient evidence to prove that the projecting structures were all erected by one person.

[28] And that is what we have done here. Having considered the factual findings made by Mr Howes on the one hand, and Mr Hui’s on the other, and having, as we have just said, studied the relevant photographs with care, we do not think that the evidence is such that one can conclude that the projecting structures in the Flat B units of Green Valley Mansion were built by one person, let alone the identity of the person(s) who built them, nor can one say with any degree of certainty that they were built at or at around the same time as alleged by the Appellant.

[29] Also, it must not be forgotten that whilst there are no doubt some similarities in the projecting structures found in some of Flat B units, they do not apply to the Flat A units. The point here is that if it was indeed the developer who erected the projecting structures in the Flat B units, we cannot imagine why they would not have done the same for the Flat A units. Afterall the 2 units, ie. Flat A and Flat B, were designed in a symmetrical way. It does not make sense for the developer to do that to one but not to the other. The fact that there is only some ‘uniformity’ for the Flat B units would have, in our view, militated strongly against the Appellants’ argument that the projecting structures for all Flat B units were erected by the developer.

[30] As for Mr. Yan’s evidence, all that we need to say is that even if his recollection is correct, and we shall for the present purpose assume that it is, it is still not enough to prove that the projecting structure in his unit, ie Flat 4B, was built by the developer. As we have noted at the outset, the occupation permit for the building was issued on 30/11/1964. Given that the Assignment for Mr Yan’s Flat was executed in March 1965 (4/3/65 to be precise), it is almost certain that he and his family would only have moved in some time after that. However, Mr Yan has not been able to tell us when in 1965 was it that he and his family moved into their flat in Green [Valley] Mansion. There is thus a gap of almost a year (ie 30/11/1964 - end of 1965) during which the projecting structure could be erected. And it could have been done either by his father or someone else on his father’s behalf.

[31] On the aforesaid basis, we are of the opinion that there is no merit in Ground 1 of the Appellants’ appeal.”

18.  The Tribunal’s reasons for rejecting Ground 5 can be found in §§45-51 of the Determination:

“[45] In support of their argument, the Appellants relied on the case of Lo Yin Ming v Appeal Tribunal (Buildings) [2011] 3 HKLRD 586. In that case, the appellants were the owners of a property in a building constructed between 1958 and 1959. The BA issued order under s.24 of the BO against certain structures of the property. The appellants appealed to the Appeal Tribunal, claiming that they had a legitimate expectation that the BA would not take enforcement action under s.24 of the BO because: (a) the structures were constructed at the same time as the whole building; (b) the BA had inspected the building at various stages, including on its completion when it was recorded that the building was built in accordance with the approved plans, and noticed the structures; and (c) although the structures were not shown on the approved plans, the BA issued an occupation permit on 6 April 1959.

[46] During the preliminary hearing, the appellants adduced evidence in respect of (a) above, including technical evidence on the analysis of the structures, and also evidence given by the occupants who moved in shortly after the issuance of the occupation permit, that the structures were already in existence when they moved in. However, the Appeal Tribunal did not hear the relevant evidence in this regard, and did not decide this factual issue. It dismissed the appeals, finding that they lacked such merit as to justify full hearing. The appellants sought a judicial review of such determination. [Giving] judgment for the appellants, Johnson Lam J (as he then was) quashed the determination, and held that:

(1) the Appeal Tribunal erred in law by failing to determine whether the structures were constructed at the same time as the building was erected;

(2) it should consider whether, although there was no written approved plans of the structures, the issuance of the occupation permit by the BA amounted to approving the structures by conduct, and accordingly they could not be deemed to have been erected in contravention of the BO;

(3) it failed to properly consider the argument of legitimate expectation in that the appellants had strong reason to rely on the occupation permit as the declaration or representation by the BA that the building works of the structures had commenced with the BA’s approval.

[47] This Tribunal is of course to be guided by the judgment of Lam J in Lo Yin Ming. But it must be appreciated at the same time that all that the learned judge is saying there is that these are matters which have to be considered if the issue of legitimate expectation is raised and there is evidence to support it. As stated by Lam J, as he then was:

‘If there is any factual dispute in this regard, the Building Authority and (in case of an appeal) the Appeal Tribunal should make a determination in respect of the disputed facts before establishing the legality of the demolition order. On the other hand, if the Building Authority or the Appeal Tribunal is satisfied that even if the facts put forward by the owner or the appellant are accepted, the allegation that the building is constructed in contravention of the provisions in the Buildings Ordinance cannot be refuted, then the factual disputes are not material issues. The Building Authority and the Appeal Tribunal do not have to wait for the determination on the factual issues before they can affirm the legality of the demolition order.’

[48] And that is what we have done. In our earlier discussion of the arguments advanced under Ground 1, we have dealt with the evidence of Mr Howes and Mr Yan. Obviously we do not think it is necessary to repeat that here. Suffice for us to say that in our view the evidence falls short of proving that the projecting structures were constructed at or at around the same time as the building was erected or, more importantly, that they were built prior to the issue of the OP. To put it in another way, we are satisfied that even if the facts put forward by the Appellants are accepted, the allegation that the projecting structures have been constructed in contravention of the provisions of the BO cannot be refuted.

[49] On the contrary, we think the evidence from all the first Assignments and the first assignment plans show that at the time of the purchase no such projecting structures existed. If these structures were indeed all built by the developer when the OPs were issued, one would have expected these structures to be included in the assignment plans. Afterall that extra area would have been part of what the developer was selling on the one hand (and the owner purchasing on the other).

[50] In addition, bearing in mind that the building work of Green [Valley] Mansion could only have commenced after the building plans were approved (which is believed by Mr Howes to be between 1963 and 1965), it is unlikely that the projecting structures could have been erected before the issuance of the OP.

[51] Now it is trite law that a substantive legitimate expectation would only arise as a result of a clear and unambiguous promise, representation, practice or policy: Ng Siu Tung & Anr. v The Director of Immigration [2002] 1 HKLRD 561. Given the conclusion we have arrived at on the evidence related to this ground, we do not see how the BD could have been said to have made any promise or representation or policy or practice giving rise to a legitimate expectation on the Appellants’ part that the BD would not have ordered the demolition of the projecting structures. Accordingly Ground 5 must also be rejected.”

APPLICATION FOR JUDICIAL REVIEW

19.  On 13 September 2018, one Lo Kai Yuen Felex made the present application for leave to apply for judicial review of the Determination.  He was, apparently, authorized by, inter alia, the Applicants to make the application.

20.  The intended grounds of judicial review are set out in “Attachment B” to the Form 86, which I shall refer to later in this decision.  In summary, the principal point raised by the Applicants in support of the present application for leave to apply for judicial review is that both the BA and the Tribunal failed to distinguish or differentiate between the South Re-Entrant Structures and the Verandah Extension Structures when considering whether they were constructed at around the same time by the developer of the Building in the 1960s prior to the first sale of the individual units to the purchasers.  Accordingly, the Determination, in so far as it concerns the South Re-Entrant Structures, cannot stand.

21.  Pausing here, it may be noted that before the Tribunal, the Applicants objected to being required to demolish both the South Re-Entrant Structures and the Verandah Extension Structures and reinstate the parts of the Building so affected in accordance with the Approved Plans. However, in the present application for judicial review, the Applicants seek to challenge the Determination in relation to the South Re-Entrant Structures only.  They do not challenge the Determination in relation to the Verandah Extension Structures[6].

22.  Pursuant to a Consent Summons dated 4 May 2020, leave was granted by this Court to Mr Lo to amend the Form 86 such that the Applicants became substituted as the applicants of the application for leave to apply for judicial review in place of Mr Lo.

PRINCIPLES FOR DETERMINING WHETHER TO HOLD A FULL HEARING

23.  Under s 49 of the Ordinance:

“(1) The Appeal Tribunal may, in any case where it considers it appropriate to do so, hold a preliminary hearing to determine whether good cause has been shown for holding a full hearing.

(2) If the Appeal Tribunal determines that good cause has not been shown for holding a full hearing it shall make an order dismissing the appeal but shall otherwise hold a full hearing.”

24.  The purpose of s 49 is to weed out hopeless appeals.  It has been said that a decision not to hold a full hearing ought to be made only in “plain and obvious” cases (Ronald Wilson v Appeal Tribunal (Buildings) [2013] 5 HKLRD 158, at §31 per Anthony Chan J).  Although it may sometimes be useful to describe statutory thresholds in various contexts by reference to standards which the court is familiar with, such as “plain and obvious”, “reasonable arguability”, “real or realistic prospect of success”, etc, ultimately the applicable threshold is that as stated in the statute.  For the purpose of s 49(2), the threshold is whether a “good cause” has been shown for holding a full hearing of the appeal.

25.  Whether a good cause has been shown for holding a full hearing depends on all relevant circumstances of the case.  The merits of the appeal are obviously an important consideration, but it is by no means conclusive.

26.  Even where an appellant cannot show that his appeal has a reasonable, or good, prospect of success at a preliminary hearing, the Tribunal may determine that, on the facts of the particular case before it, good cause has been shown for holding a full hearing because, for example, the appeal raises some points of general importance, or may have precedential value in other cases lining up before the Tribunal, or the interests of justice would be served by holding a full hearing.  It is not possible to state exhaustively all the situations which would constitute a good cause for holding a full hearing of an appeal.  The matter is left to the discretion of the Tribunal, subject to the court’s supervisory jurisdiction in judicial review.

27.  Generally speaking, if an appellant is able to raise a substantial dispute of fact the resolution of which is required for the purpose of disposing of his appeal, it is likely that a good cause has been shown for holding a full hearing for the purpose of s 49 of the Ordinance.  However, if the disputed fact raised by the appellant is not material to the outcome of the appeal, the Tribunal is under no duty to resolve such dispute and does not have to hold a full hearing to determine the factual issue, but may dismiss the appeal forthwith (Lo Ying Ming v Appeal Tribunal (Buildings) [2011] 3 HKLRD 586, at §6 per Lam J (as he then was)).  Further, as stated by Au-Yeung J in Chinluck Properties Ltd v Appeal Tribunal (Buildings), HCAL 124/2012, 12 October 2012, at §25, the Tribunal may refuse to hold a full hearing where it is apparent that an ostensible dispute of fact is without substance, or where the appeal is wholly lacking in merits or is frivolous.

28.  When approaching the question of whether there is a substantial dispute of fact which requires determination at a full hearing, the Tribunal is entitled to approach the threshold question with a degree of robust common sense.  The Tribunal does not have to examine the minutiae of the evidence, and is not bound to take the appellant’s evidence at face value, or read the evidence in a way which is most favourable to the appellant’s case.  The Tribunal, whose members are chosen on account of their specialist knowledge and skills in areas relevant to building appeals, is entitled to consider the evidence broadly, pragmatically and with common sense.

29.  Lastly, it should be borne in mind that (i) the burden of establishing a “good cause” for the purpose of s 49 lies on the appellant, and (ii) whether an appeal has merits must be determined by reference to the materials placed before the Tribunal by the parties (Longest Profit (Hong Kong) Ltd v Appeal Tribunal (Buildings), CACV 60/2013, 29 January 2014, at §§11 and 25 per Lam VP).

DISCUSSION

30.  As stated in Attachment B to the Form 86, the Applicants’ grounds of judicial review are as follows:

“[1] The Unauthorized Building Work (‘UBW’) of all the Flat B units of Green Valley Mansion (the ‘Building’) consist of two parts:

a) First part is ‘the verandah extension structures’ (the ‘First Part’), and

b) Second part is ‘the south re-entrant structures’ (the ‘Second Part’).

…

[2] The report of Mr. Hui Heung Yeung, the senior building surveyor of the Buildings Department, has only focused on the First Part, or even failed to distinguish between the First Part and the Second Part, and have treated both parts as one. In [so] doing Mr. Hui has in his report confused or misled the Appeal Tribunal into thinking that the two parts are one same structure, which is fundamentally wrong.

[3] The Appeal Tribunal has not considered the fact thoroughly and came to the wrong conclusion that there should not be a full hearing in respect of the UBW.”

31.  In my view, it was not necessary for the BA or the Tribunal to distinguish or differentiate between the South Re-Entrant Structures and the Verandah Extension Structures for the purposes of issuing the Building Orders or determining the Appeals.  In so far as the BA was concerned, both structures were unauthorized buildings works the construction of which had not received the prior consent and approval of the BA as required by s 14 of the Ordinance.  The “projecting structure” referred to in each of the Building Orders covered both the South Re-Entrant Structure and the Verandah Extension Structure (as can be seen from the plans attached to the Building Orders).  The fact that the South Re-Entrant Structures might all have been constructed by the developer of the Building, or some other person, at around the same time in the 1960s prior to the first sale of the individual units to the purchasers is no evidence that their construction had received the approval and consent of the BA.  Under s 14 of the Ordinance, no person shall commence or carry out any building works without having first obtained the BA’s approval in writing of documents submitted to him in accordance with the building regulations and his consent in writing for the commencement of the relevant works.  It is trite that the BA has no power to grant retrospective approval under s 14.  There is also no evidence that the BA has ever given the requisite approval or consent under s 14 in relation to the South Re-Entrant Structures and the Verandah Extension Structures.

32.  In this regard, it is important to appreciate that Lo Ying Ming v Appeal Tribunal (Buildings) [2011] 3 HKLRD 586, which apparently supports the Applicant’s argument, is a decision on the old statutory regime under s 9 of the Buildings Ordinance 1955.  In his judgment, Johnson Lam J (as he then was) was at pains to draw a distinction between the legislative regime under s 9 of the 1955 Ordinance and that under s 9 of the Buildings (Amendment) Ordinance 1959 (which is similar to the current legislative regime in Cap 123):

“[16] It is provided in the 1955 Ordinance that no person shall commence building works without the prior consent of the Building Authority and that the Building Authority may refuse his consent to the carrying out of any building works where he has not received such plans prescribed by the regulations. But according to the wordings in section 9(1), the Building Authority’s consent for the commencement of the building works is not restricted to the works shown in the approved plan. In this regard, the Ordinance was amended in 1959 and such restriction was added by section 9(1)(b).

…

[26] It can be seen from the above provisions that upon the completion of the construction works, if the Building Authority discovered during their inspection that any part of the works were not done in compliance with the legislation, the Building Authority would certainly have refused to issue the occupation permit and would have informed the property owners in writing.

[27] As mentioned above, the Building Authority issued the occupation permit on 6 April 1959. If the balconies in question were built at the same time as the building was erected, the occupation permit issued by the Building Authority subsequent to the inspection could be deemed as evidence to show that the Building Authority recognized the balconies as lawful structures. Although no written approval or relevant plans of the balconies are found in the existing files, I am of the view that the Building Authority issued the relevant occupation permit after conducting the inspections, and given the meaning of an occupation permit under the legislation, the Building Authority could therefore be deemed to have approved the construction of the balconies by conduct.

[28] In paragraph 17 of the Determination, it is held by the Appeal Tribunal that the final version of the approved plans shall be the ultimate reference to be used by the Building Authority for the enforcement of the provisions. Although I agree that both the Buildings Ordinance 1955 and the Buildings (Amendment) Ordinance 1959 indicate that the building plans should be approved by the Building Authority before the commencement of the building works, it does not mean that the Building Authority’s actual steps of granting approval for the commencement of the building works were the same under the 1955 Ordinance and the 1959 Ordinance. As I have already mentioned that under the 1959 Ordinance, the Building Authority’s powers to approve the commencement of building works were subject to more stringent restrictions and it had no powers to approve the commencement of works in the absence of any approved plans. However under the 1955 Ordinance, the powers of the Building Authority were not subject to this restriction.

[29] Therefore generally speaking, although I agree that the approved plans are the major reference to be used by the Building Authority for the enforcement of the provisions, where the construction works of the building was approved under the 1955 Ordinance, provided that there is evidence to show that the relevant construction works were carried out at the same time as the building was erected, and that when the Building Authority inspected the building, it should have noticed the occupation permit which was already in existence, the Appeal Tribunal should take into account whether the issuance of the occupation permit by the Building Authority amounted to approving the construction works by conduct, and accordingly consider whether the construction works cannot be deemed to have been erected in contravention of the provisions of the Buildings Ordinance.”

33.  In other words, under the 1955 Ordinance, it was possible for the BA to give his relevant consent or approval to the commencement of building works by conduct which, depending on the evidence, might be evidenced by the issue of an occupation permit.  However, this was no longer possible under the 1959 Ordinance, which prescribed that the relevant consent or approval could only be given through the approval of plans.  The same position applies under the current Buildings Ordinance.

34.  Since it is not in dispute that the South Re-Entrant Structures (as well as the Verandah Extension Structures) do not appear on the Approved Plans, it is clear that the relevant works were carried out in contravention of the Ordinance, and were therefore subject to the BA’s enforcement action under s 24 of the Ordinance.  Also, being the owners of the relevant units in or at which the unauthorized buildings works were found, it was correct for the BA to issue the Buildings Orders to the Applicants (HKSAR v Yu Ching [2006] HKCLRT 311, at §33 per Deputy Judge Barnes (as she then was); Lee Hoi Ching v Lok Fuk Ding [2008] 5 HKLRD 809, at §§48-50 per Recorder Ambrose Ho SC).  The contention that the Applicants were not the correct parties to be served with the Building Orders is incorrect as a matter of law.

35.  For the same reasons, I do not consider that the Tribunal was in error in not distinguishing or differentiating between the South Re-Entrant Structures and the Verandah Extension Structures in the Determination.  In any event, the Tribunal, having considered the reports of Mr Howes and Mr Hui and studied the relevant photographs of the UBWs, took the view that the evidence before it was not such as would justify a conclusion that they were built by one person at around the same time[7].  Normally, it may not be appropriate for the Tribunal to resolve conflicts of expert evidence at a preliminary hearing.  However, the experts’ conflicting evidence in this case concerned the question of whether the external appearance of the UBWs appeared to be uniform, and the experts reached their views based on external visual inspection[8]. In such circumstances, I consider that the Tribunal was entitled to reach its own conclusion with the assistance of the evidence of the experts and upon an examination of the relevant photographs of the structures in question if the Tribunal considered that the materials before it could justify a conclusion being reached on the issue at a preliminary hearing [9].

36.  It is relevant that the evidence of Mr Hui that the external appearance of the UBWs did not appear to be uniform covered both the South Re-Entrant Structures and the Verandah Extension Structures.  In particular, in respect of the former, Mr Hui stated at:

(1) §6(a) of his report, “[t]he extent of the projecting structures at Flats 13B and 14B was different from those on the other floors.  Please refer to the photos taken on 13 March 2014”.  This comment related partly to the South Re-Entrant Structure and partly to the Verandah Extension Structure[10].

(2) §6(d) of his report, “[n]o window was installed on the portion of the projecting structures adjoining the approved rear bedroom at Flats 6B, 9B and 11B while windows were installed at the same location of Flats 1-5B, 7B, 8B and 10B”.  This comment related to the South Re-Entrant Structures[11].

In my view, the Tribunal was entitled to accept the evidence of Mr Hui[12] (as supported by what could be seen from the relevant photographs), and come to the view that that there was not sufficient uniformity of construction of the UBWs such as to give rise to an inference that they were built by one person at around the same time.

37.  Even if the Tribunal’s conclusion that there was not sufficient uniformity of construction of the South Re-Entrant Structures is wrong such that an inference ought to be drawn that they were constructed by the developer of the Building, or some other person, in the 1960s prior to the first sale of the individual units of the Building to the purchasers, there was still no evidence that such structures already existed at the time when the BA inspected the Building prior to the issue of the OP on 30 November 1964.  There was thus no factual foundation for the argument that those structures had been approved by the BA by conduct, which, in any event, could not turn them into lawful structures under the Buildings (Amendment) Ordinance 1959 or the current Buildings Ordinance.

38.  In relation to the Applicants’ argument based on legitimate expectation, it is well established that an expectation, to be legitimate, must be both lawful, in the sense that the benefit must be something that can be legally accorded, and reasonable (Ng Siu Tung v Director of Immigration (2002) 5 HKCFAR 1, at §§101 and 112).  The Applicants’ expectation (if any) that they would be permitted to retain and use the UBWs is neither lawful nor reasonable.

(1) It is not lawful because the BA has no power of dispensation from the statutory requirements under s 14 of the Ordinance that no building works shall be commenced or carried out without first having obtained the requisite approval and consent in writing from the BA,

(2) It is not reasonable because, as has repeatedly been held by the court, the BA’s policy regarding unauthorized building works is an “enforcement” policy, not a “tolerance” policy (Sky Wide Development Ltd v Building Authority, HCAL 116/2008 (24 October 2008), at §10; Technic Investment Co Ltd v Appeal Tribunal (Buildings) [2012] 3 HKLRD 245, at §27).  The fact that the BA has not taken action against an unauthorized structure for a long period of time does not mean that no action can, or will, be taken against it (Wong Tin Chor v The Appeal Tribunal (Buildings Ordinance) [2020] HKCFI 562, at §20(1)).

In short, no owner of premises in or at which unauthorized building works are found has any right or legitimate expectation to retain them (see Sky Wide Development Ltd, ante, at §18).  In the present case, there is also no relevant representation or promise made by the BA which the Applicants can point to in support of the alleged legitimate expectation.

39.  In all, I reject the Applicants’ intended grounds of judicial review as raised in Attachment B to the Form 86.

40.  In passing, there is one other point that I should deal with.  Mr Chiu has sought to make something out of §25 of the Determination, in which the Tribunal stated the following:

“Having looked at the photographs taken of the projecting structures in question for the Flat B units [closely], we do not think they are not sufficiently uniform in appearance. For that reason, we have difficulty in accepting Mr Howes’ view that ‘there is sufficient evidence of uniformity of construction from an external visual inspection to conclude that … the projecting structures were constructed by one person at approximately the same time’” [underlining added].

Mr Chiu argues that this passage shows that the Tribunal was in a state of “confusion” as to whether there was or was not uniformity of appearance of the projecting structures from the photographic evidence, and thus “one should treat the finding of the Appeal Tribunal with caution”[13]. In my view, reading §25 of the Determination as a whole and having regard to other express findings made in the Determination (in particular, the finding at §28 where the Tribunal stated that having studied the photographs with care “we do not think that the evidence is such that one can conclude that the projecting structures … were built by one person … nor can one say with any degree of certainty that they were built at or at around the same time as alleged”), it is clear that the word “not” was a typing or clerical error which should be omitted.

PROPOSED ADDITIONAL GROUNDS OF JUDICIAL REVIEW

41.  Mr Lo issued a summons on 4 May 2020 seeking to amend Attachment B to the Form 86 to raise 2 additional grounds of judicial review, as follows -

“[2A] In paragraph 29 of the Determination, the Appeal Tribunal made an inference of facts to the effect that the design of Green Valley was symmetrical so that the developer would have erected the Projecting Structures on both the Flat A units and the Flat B units. The said inference was based on a misreading of the evidence complained of in paragraph (2) immediately hereinabove, which is an error of law. Further or alternatively the said inference was not the only reasonable inference, and one which should not in law have been drawn in the absence of a full hearing.

[2B] In paragraph 30 of the Determination, the Appeal Tribunal in dealing with the witness statement of Cheng Yan Chi Andy, erred in law:

(1) in holding that Cheng Yan Chi Andy was unable to tell the Appeal Tribunal when he and his family moved into Flat 4B in 1965 when Cheng Yan Chi Andy did not depose in his witness statement any word to that effect, nor was the matter investigated, which it ought to be, in a full hearing;

(2) in holding that the Projecting Structures could have been erected by Cheng’s father or someone on the father’s behalf in a period commencing on 30.11.1964 (the date when the Occupation Permit was issued), erred in law in that the inference was one which no reasonable person could have held as the assignment of the unit to Cheng Yan Chi Andy’s family was not executed until 4.3.1965; and

(3) basing itself on the holdings in sub-paragraphs (1) and (2) hereinabove, inferred that the Projecting Structures could have been erected by Cheng’s father or someone on the father’s behalf in a period of almost a year commencing from 30.11.1964 to the end of 1965, which is the most adverse inference that could have been drawn against the appellants, and one which should not have been drawn without a full hearing.”

42.  In respect of the proposed “Ground (2A)”, the inference that the Tribunal drew from the symmetry of the Flat A and Flat B units of the Building as appeared on the Approved Plans, in so far as it relates to the South Re-Entrant Structures (but not the quarter-oval verandahs which, as mentioned above, is no longer in issue in this application), seems to me to be a reasonable one which the Tribunal was entitled to draw.

43.  In respect of the proposed “Ground (2B)”, Mr Andy Yan’s evidence, even if it were to be accepted, cannot prove that the UBWs were constructed by the developer of the Building (or some other person) prior to the issue of the OP.  However, the Tribunal’s comment at §30 of the Determination that the UBWs at Flat 4B “could have been done either by his father or someone else on his father’s behalf” during the period from “30/11/1964 - end of 1965”, may not be justified.

44.  These having been said, the proposed additional grounds do not advance the Applicants’ application for leave to apply for judicial review for the same reasons given in §§31-34 and 38 above.

45.  In all, none of the intended grounds of judicial review is reasonably arguable or has a realistic prospect of success.

DISPOSITION

46.  The application for leave to apply for judicial review, as well as the summons dated 4 May 2020, are dismissed with costs to the Building Authority, to be taxed if not agreed.