RE A SIGNBOARD ATTACHED TO THE EXTERNAL WALL OF 2/F TO 4/F, NO 60 SAI YEUNG CHOI STREET SOUTH, KOWLOON (FACING SAI YEUNG CHOI STREET SOUTH AND NELSON STREET)

DCMP 1530/2018 & DCMP 1550/2018
(Heard together)

[2018] HKDC 760

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1530 OF 2018

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1550 OF 2018

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DECISION

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Introduction

1.  In DCMP 1530/2018:-

(a)  The Building Authority (“BA”) applies for a priority demolition order (“PDO”) pursuant to s 24B of the Buildings Ordinance (Cap 123) (“BO”), in respect of a signboard attached to the external wall of 2/F to 4/F, No 60 Sai Yeung Choi Street South, Kowloon (facing Sai Yeung Choi Street South and Nelson Street) (the “Mong Kok Signboard”).

(b)  The PDO application in DCMP 1530/2018 was filed on 14 June 2018, and notices of the application were (1) posted upon conspicuous parts of the building the Mong Kok Signboard was attached to; and (2) sent to various persons who in the BA’s view are persons affected by the application.

(c)  The BA’s position is that the Mong Kok Signboard is an unauthorized building work erected in contravention of the BO, and that (1) it constitutes an imminent danger to life or property; and (2) it has been erected with a view to sale, letting, or other disposal.

2.  Similarly, in DCMP 1550/2018:-

(a)  The BA applies for a PDO pursuant to s 24B of the BO, in respect of a wall signboard attached to the approved masonry wall facing Hip Wo Street, Kai King Building, No 12 Yuet Wah Street, Kwun Tong, Kowloon (the “Kwun Tong Signboard”).

(b)  The PDO application in DCMP 1550/2018 was filed on 14 June 2018, and notices of the application were (1) posted upon conspicuous parts of the building the Kwun Tong Signboard was attached to; and (2) sent to various persons who in the BA’s view are persons affected by the application.

(c)  The BA’s position is that the Kwun Tong Signboard is an unauthorized building work erected in contravention of the BO, and that (1) it constitutes an imminent danger to life or property; and (2) it has been erected with a view to sale, letting, or other disposal.

3.  The only opposition to both PDO applications comes from Carven (Hong Kong) Company Limited (永昌行(香港)有限公司) (“Carven”).  In particular:-

(a)  On 25 June 2018, Carven filed a notice pursuant to BO s 24B(7) applying for leave to be heard at the hearing of both PDO applications.

(b)  At the hearing on 27 June 2018, a Mr Wong Pak Keung (“Mr Wong”) appeared on behalf of Carven.

(c)  Mr Wong described himself as a manager of Carven, duly authorized by the directors of Carven to appear by a board resolution served together with Carven’s BO s 24B(7) notice.

(d)  However, Mr Wong himself was not a director of Carven.  Pursuant to RDC O 5A r 2, a company can only act by a solicitor or by one of its directors.  As Mr Wong is neither a solicitor nor a director of Carven, he does not have the right to carry on these proceedings on behalf of Carven. [1] 

(e)  Therefore, I cannot regard Mr Wong’s representations as Carven’s representations, and strictly speaking it is not necessary for me to consider Mr Wong’s representations: see Re a Wall Signboard attached at 3/F-10/F, China Travel (Cargo) Logistics Centre, No 1 Cheong Tung Road, Hung Hom, Kowloon Location 2: External Wall Facing Hung Hom Station (Unreported, DCMP 545/2017, 6 March 2017) at §§11-12 per HH Judge MK Liu (“Re Hung Hom Signboard”).

(f)  For sake of completeness, I will nevertheless set out and deal with Mr Wong’s representations in my analysis below.

4.  The legal principles pertaining to grant of a PDO have been comprehensively set out in Building Authority v Good Fortress Limited (Unreported, DCMP 3411/2016, 17 January 2017) at §§8-10, 25-39 per HH Judge Andrew Li.  Adopting the terminology from that case, the Court can only exercise its discretion to grant a PDO upon being satisfied of (1) the notice condition; (2) the contravention condition; and (3) the circumstance condition.  

The Notice and Contravention Conditions are Satisfied and are Not Disputed

5.  Having considered the evidence filed by the BA, I am satisfied that the notice condition, as required by BO s 24B(2), (3), and (4), has been complied with.

6.  I note that Mr Wong does not raise any issue or dispute on the notice condition. Per Mr Wong’s representation, Carven became aware of the PDO applications and the 27 June 2018 hearing date in respect of both the Mong Kok Signboard and the Kwun Tong Signboard within a day or two of the notices being posted by the BA on 14 June 2018.

7.  Having considered the evidenced filed by the BA, I am also satisfied that the contravention condition as required by BO s 24B(1) has been met.  In contravention of BO s 14, the BA was not asked to give and did not give any approval or consent for the construction of the Mong Kok Signboard and Kwun Tong Signboard.

8.  I note that Mr Wong admits that the Mong Kok Signboard and Kwun Tong Signboard are unauthorized structures.

The Circumstance Condition is Satisfied

9.  The BA has provided evidence that both the Mong Kok Signboard and Kwun Tong Signboard are being leased out for profit, respectively by a HK JEBN Limited and a Donald Wong Limited. 

10.  Mr Wong does not dispute this. He further explains that Carven subsequently acquired the Mong Kok Signboard and Kwun Tong Signboard, which are currently being leased out by Carven.

11.  I am therefore satisfied that the circumstance condition of “erected with a view to letting” under BO s 24B(1)(b) has been met.

12.  As for the circumstance condition of “imminent danger to life or property” under BO s 24B(1)(a):-

(a)  The BA has provided expert opinion evidence prepared by structural engineers, to support the conclusions that both the Mong Kok Signboard and Kwun Tong Signboard constitute an imminent danger to life or property.

(b)  In particular, as explained at Building Authority v Good Fortress Limited (supra) at §33 per HH Judge Andrew Li, “imminent” means something overhanging, impending, and/or which will occur in the near future.  This is to be distinguished with “immediate”, which denotes something which occurs at once, instantly.

(c)  For the Mong Kok Signboard in particular:-

(i) The Mong Kok Signboard is a large structure (main display surface being approximately 13.45m x 6.7m in size, with 2 secondary surfaces being approximately 3.2m x 6.7m in size) with a steel frame.

(ii) The Mong Kok Signboard is affixed to the non-structural external wall of a building which is 46 years old and of unknown condition, and it is unclear whether such external wall is structurally adequate to support the weight of the Mong Kok Signboard.

(iii) The quality of design, quality of testing, quality of materials, quality of workmanship, quality of construction, and other construction details of the Mong Kok Signboard are not known as it is an unauthorized building work.

(iv) It is not even known whether the Mong Kok Signboard was designed by a qualified professional and erected by a qualified contractor.

(v) As can be seen from photographs produced by the BA, the Mong Kok Signboard projects above a busy pedestrian street, and any structural failure could lead to catastrophic consequences to public safety.

(d)  As for the Kwun Tong Signboard:-

(i) The Kwun Tong Signboard is a very large structure (approximately 32m x 6m in size) with a steel frame.

(ii) The quality of design, quality of testing, quality of materials, quality of workmanship, quality of construction, and other construction details of the Kwun Tong Signboard are not known as it is an unauthorized building work.

(iii) It is not even known whether the Kwun Tong Signboard was designed by a qualified professional and erected by a qualified contractor.

(iv) As can be seen from photographs produced by the BA, the Kwun Tong Signboard projects above a busy road with both pedestrian and vehicle traffic, and any structural failure could lead to catastrophic consequences to public safety.

13.  In light of the evidence presented by the BA as set out above, I am satisfied that the circumstance condition of “imminent danger to life or property” under BO s 24B(1)(a) has been met.

14.  In response to the evidence of the BA, Mr Wong made some bare assertions that both the Mong Kok Signboard and Kwun Tong Signboard were very safe, that Carven arranged for both signboards to be regularly checked, and that a person could stand under either signboard for 50 years, 100 years, or even 200 years and they would not fall on him. 

15.  However, when I asked Mr Wong what evidence he or Carven had to support these assertions, he could only say that there was evidence available but that he did not bring any to the hearing.  He did not proffer any explanation as to why such evidence was not brought to the hearing (despite Carven being aware of the hearing since shortly after 14 June 2018), nor did he give any particulars or details as to the nature and content of this alleged evidence.

16.  As noted above, it is strictly unnecessary for me to consider Mr Wong’s representations.  However, even I was to take Mr Wong’s representations into account, that would not in any way displace my conclusion that on the evidence before me the requirement of “imminent danger to life or property” under BO s 24B(1)(a) has been amply met.

Exercise of Discretion to Grant PDOs

17.  I am satisfied that all 3 conditions for grant of a PDO have been met in respect of both the Mong Kok Signboard and the Kwun Tong Signboard.

18.  The circumstances in the present case wholly support the grant of the PDOs sought by the BA.  As noted in Re Hung Hom Signboard (supra) at §13 per HH Judge MK Liu (1) the BA has a duty to enforce the law, and similarly Mr Wong/Carven has a duty to abide by the law; and (2) since the Mong Kok Signboard and Kwun Tong Signboard both constitute imminent dangers to life or property, there is no reason to wait.

19.  I therefore grant PDOs in respect of both the Mong Kok Signboard and the Kwun Tong Signboard, in terms of the amended draft orders submitted by the BA.

20.  There will be no order as to costs for both PDO applications.

21.  As an additional observation:-

(a)  BO s 24B(10)(g) stipulates that any PDO “shall” (“須”) reproduce in clear and legible form in English and Chinese subsections (14), (17), (19), and (20) of BO s 24B.

(b)  However, the draft orders originally submitted to me in the present case did not reproduce subsections (14) and (17).

(c)  The BA explained that this was because subsection (14) related to closure of premises, and subsection (17) related to police assistance in closure of premises, which were not sought in both of the present cases.

(d)  However, the requirement in BO s 24B(10)(g) is a mandatory one.  The use of the word “shall” is not qualified by any other words.  Contrast can be drawn with BO s 24B(10)(d) which contains the words “if any”, and BO s 24B(10)(f) which contains the words “if appropriate”.

(e)  It appears to me the plain and ordinary meaning of the words used in BO s 24B(10)(g) requires subsections (14) and (17) to be reproduced in all PDOs, even if subsections (14) and (17) are not applicable or relevant to that particular order.

(f)  To avoid confusion, the reproduced subsection (14) and (17) can be notated to be “not applicable/relevant to this order” as appropriate.