PETER A. DE KANTZOW AND ANOTHER v. THE APPEAL TRIBUNAL

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HEADNOTE

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                By virtue of paragraph 2 of the First Schedule to the Buildings Ordinance, Cap.123, it is only after an appeal to the Appeal Tribunal established under section 43 of that Ordinance had been given "due consideration" that a view can be taken as to whether good cause has been shown why an inquiry should be held, and one refused if none appears. If the circumstances which appear from the papers before the Appeal Tribunal in closed session are such that no reasonable tribunal would exclude the reasonable possibility of the appellant succeeding following a deployment at an inquiry of the material contained in or reasonably foreshadowed by those papers, then it would not be possible to give the appeal due consideration on paper so as to be in a position properly to refuse an inquiry. Such a refusal would then be beyond the powers of the Appeal Tribunal. And it would also be irrational or Wednesbury unreasonable.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. The applicants, Peter and Stephanie de Kantzow are husband and wife. They own and live in a house in Shek-O village. A number of alterations have been made to the house. They were effected by way of building works which, by reason of section 14(1) of the Buildings Ordinance, Cap.123, required the Building Authority's  approval, but which have never received it. That being so, the Building Authority was empowered, by section 24(1) of the ordinance, to order the demolition of the offending building works. He has made such an order. It is dated February 23, 1988. In it the building works to be demolished are identified as : "(i) structures erected in and over the rear yard extending to above roof level; (ii) a structure erected on the roof over 1/F; (iii) structures erected, projecting from the external wall at G/F level."

2. Where the power to make a demolition order arises, the Building Authority has a discretion whether or not to make one. That being so, a decision of his to make a demolition order is one made in the exercise of a discretion, and any person prejudiced thereby may appeal against it to the Appeal Tribunal established under section 43 of the Buildings Ordinance. The Court of Appeal so held in Quebostock Ltd v. Building Authority [1986] HKLR 467.

3. The de Kantzows have proposed to the Building Authority that he withdraws the demolition order. To that end, their solicitors have submitted to him on their behalf a written proposal dated February 17, 1989, prepared by, or with the assistance of, a consultant surveyor.

4. By a letter dated September 29, 1989, the Building Authority communicated to the de Kantzow's solicitors his unwillingness to withdraw the demolition order.

5. By a letter dated November 2, 1989, the de Kantzows' solicitors gave the Building Authority notice that they were appealing against the decision contained in his letter of September 29, 1989. The appeal has been treated by all concerned as an appeal against the demolition order made in February 1988 rather than the refusal in September 1989 to withdraw it. No point that the appeal was out of time has been taken.

6. An appeal bundle was in due course prepared by the Building Authority who provided the same to the Appeal Tribunal. By his letter dated March 23, 1990, he so informed the de Kantzows' solicitors, enclosing a copy of the appeal bundle.

7. The next thing of importance was, it seems, a letter dated March 23, 1990, from the clerk to the Appeal Tribunal to the de Kantzows' solicitors, copied to the Building Authority. The letter reads :

"I refer to your notice of appeal dated 2.11.89 against the Building Authority's order No. C & E 0638/87/HK dated 23.2.88 issued under section 24 of the Buildings Ordinance.

In pursuance of paragraph 1(2) of the First Schedule to the Building Ordinance, the Tribunal has scheduled to hold a closed meeting to consider your appeal in accordance with paragraph 2 thereof.

I will convey to you any decision of the Tribunal as soon as possible. In the event the Tribunal decides to hold an inquiry, you will be addressed further on the date, venue and the necessary procedure."

8. At this stage, it becomes necessary to look at the Appeal Tribunal's procedure as laid down by statute. Section 44(1) of the Building ordinance provides that appeals to the Appeal Tribunal "... shall be determined ... by a majority vote ... in the manner provided in the First Schedule." That schedule is headed "Procedure of Appeal Tribunal" and continues :

"1.    (1)  A person appealing from a decision of the Building Authority under Part VI of this Ordinance (hereinafter referred to as the appellant) shall, within 3 weeks of such decision give notice in writing to the Building Authority stating the substance of the matter relating to his appeal.

        (2)  Upon receipt of such notice the Building Authority shall convene a meeting of the tribunal.

2.            If it appears to the tribunal, after due consideration of any appeal, that no good cause has been shown why an inquiry should be held, it may refuse to hold an inquiry and shall inform the appellant accordingly.

3.     (1)   The tribunal shall permit the appellant and such other persons as it considers to be prejudiced by the decision, which is the subject of the appeal, to appear and to be heard at the inquiry, to be assisted in the presentation of their cases by other persons and to take such part in the proceedings as the tribunal may think proper;

Provided that no person shall be entitled as of right in the capacity of counsel, solicitor or other paid advocate to conduct the case of the appellant or such other persons by addressing the tribunal or examining or cross-examining witnesses.

        (2)   For the purposes of sub-paragraph (1), the tribunal may cause such notice to be given to any person or to the public at large as it may think proper.

        (3)   The inquiry shall be held in such place and time as the tribunal may determine and shall be a private inquiry."

9. Reverting to section 44, it is to be noted that subsection (2) thereof provides that :

"For the purposes of such determination the tribunal shall have all such powers as are vested in the High Court in respect of -

 

10. The "closed meeting" which the clerk to the Appeal Tribunal's letter of March 23, 1990, said had been scheduled was held on April 6, 1990. The de Kantzows' appeal was - as the chairman of the Appeal Tribunal, a Magistrate as it happens, has informed the Court on affirmation - one of 37 heard on that day. The word "heard" is his.

11. By a letter dated April 19, 1990, the clerk to the Appeal Tribunal informed the de Kantzows' solicitors of the fate of their appeal. The letter reads :

"With reference to your notice of appeal dated 2.1.89 against the Building Authority's Order No. C&E 0638/87/HK dated 23.2.68 in relation to the above premises, you are advised that the Appeal Tribunal instituted under the provisions of the Building Ordinance has pursuant to the powers vested in them held a meeting to consider your appeal.

I have also been directed to inform you that after considering the merits of your appeal and all the circumstances of the case, the tribunal has ruled that no good cause has been shown to justify a full inquiry and that your appeal be dismissed accordingly."

12. Now it is clear from paragraph 3 of the First Schedule that if any inquiry is held the appellant may appear at the inquiry and be heard thereat. It is not suggested that if the de Kantzows' appeal warranted an inquiry it would nevertheless be appropriate to deny them the right to be legally represented, to give and call oral evidence and to have oral arguments advanced on their behalf.

13. Looking at paragraph 2 of the First Schedule, one sees that it is only after an appeal has been given "due consideration" that a view can be taken as to whether good cause has been shown why an inquiry should be held, and one refused if none appears.

14. It is to be expected that there will be a number - perhaps a large number - of appeals which can be given due consideration on the papers before the Appeal Tribunal in closed session and properly denied an inquiry upon it appearing, following due consideration on paper, that no good cause for an inquiry is shown. Also there may be appeals in which there is some minor omission from or ambiguity in the papers which prevents it from being possible to give such appeals due consideration on the papers as they stand. In such an instance a simple request for more information properly made may well put the Appeal Tribunal in a position to give the appeal due consideration on paper. But in an appeal where it is not possible to give the matter due consideration on paper an inquiry should be held. And a failure to hold one would be beyond the power of the appeal tribunal to refuse an inquiry.

15. I do not propose to attempt an exhaustive definition of the formula "due consideration" as it appears in paragraph 2 of the First Schedule. But I will say this : If the circumstance which appear from the papers before the Appeal Tribunal in closed session are such that no reasonable tribunal would exclude the reasonable possibility of the appellant succeeding following a deployment at an inquiry of the material contained in or reasonably foreshadowed by those papers, then it would not be possible to give the appeal due consideration on paper so as to be in a position properly to refuse an inquiry. Such a refusal would then be beyond the powers of the Appeal Tribunal. And it would also be irrational or Wednesbury unreasonable.

16. Is that the position here? In my judgment, it is. That being so - and there being in my judgment no good reason for witholding relief from the de Kantzows in the exercise of any discretion of mine in that regard - I make: first, an order of certiorari bringing up and quashing the Appeal Tribunal's refusal to hold an inquiry to determine the de Kantzows' appeal; and, secondly, an order of mandamus directing the Appeal Tribunal to hold such an inquiry.

17. I should mention that nobody has suggested that if I decided in favour of the de Kantzows on the basis that their appeal could not justifiably be terminated without an oral hearing, it would be appropriate nevertheless to stop short of mandamus. To do so would be saying in effect that the Appeal Tribunal should hold an oral hearing to decide whether or not to hold an inquiry. That is not a course which commends itself to me. Indeed, I do not think it is one within the contemplation of the Buildings Ordinance.

18. Having directed an inquiry, it is necessary for me - when saying why I have done so - to avoid saying anything which could prejudice the hearing of the appeal one way or the other. As far as my approach to the law is concerned, I have already stated it. When it comes to the factual circumstances, it seems to me that I should say this much and no more : There are here - and it should have been apparent to the Appeal Tribunal that there are here - disputes as to the facts pertaining to matters relevant to the exercise of the discretion whether or not to make a demolition order. These cannot be resolved without the taking of oral evidence. Then there are here matters of value judgment which in all the circumstances are not susceptible of reliable assessment without the benefit of oral argument. It is true that the proposal was before the Appeal Tribunal. But - apart from being on paper only - that went to an attempt at friendly persuasion, so to speak, of the Building Authority. The way in which the case would be put by way of an appeal - to use the word in its more general as well as its forensic sense - to the independent judgment of an impartial tribunal is likely to be very different, quite apart from the difference between an oral presentation and a written one.  In passing, I would note the Flat Roof over Flat A, 30/F, Pine Mansion, Taikoo Shing Road Case heard by the Appeal Tribunal on July 23, 1986, which illustrates - whether or not one agrees with everything contained therein - the care which appeals such as the de Kantzows' appeal sometimes require and receive. Before leaving this aspect of the present application, I would add only this : I deliberately refrain from analysing the answers made on affirmation by a member of the Appeal Tribunal to the 7 grounds set out at the end of the proposal. I do propose, however, to set out those grounds and answers.

19. The grounds read :

20. The answers read :

21. And the Affirmation in which those answers appear concludes thus :

                "8.         The Appeal Tribunal further considered the following matters to be relevant :

22. The de Kantzows do not accept the point as to danger and propose to meet it in full at the inquiry.

23. Moving on, I should mention that for the Appeal Tribunal, Miss Hartsein puts forward a more general test as to whether or not a refusal to hold an inquiry is to be interfered with by this Court in the exercise of its supervisory jurisdiction. The test, she submits, is whether the Appeal Tribunal has acted fairly. Ultimately, that is the question which arises; and I answer it in the negative in the circumstance of the present case. The test which I formulated is designed to faciliate arriving at the right answer to that question.

24. Having decided as I have on the basis on which I have so decided, it is unnecessary for me to deal with the de Kantzows' complaint that a member of the Appeal Tribunal, who is also a member on Building Ordinance Office, supplied to his fellow tribunal members, and that they received from him, material which bore on the question whether or not the de Kantzows ever received a warning letter. I think it is right to say, however, that the good faith of the Tribunal is not challenged. Rather the point is that what the Appeal Tribunal did deprived the de Kantzows of justice and its own proceedings of the appearance of justice.

25. Before parting with this case, I would like to mention two other things.

26. The first is that my decision is of course not to be taken as suggesting that there are no circumstances in which the refusal of an enquiry would be justified. On the contrary, I think that there may well be very many instances in which it would be right to refuse an inquiry. The power to do so contained in paragraph 2 of the First Schedule puts on a statutory footing for the Appeal Tribunal the right and indeed duty which every tribunal must have of protecting its own process from being abused by being inundated with hopeless cases holding up the queue as they are pursued to the bitter end. Of course - and the present case is an illustration of this - the power is a draconian one which has to be exercised with due care so as to avoid excluding the sheep with the goats.

27. The second is this : It may well be time for active consideration to be given to amendments to the First Schedule - or even a wholesale revision thereof - to improve the Appeal Tribunal's procedure in general and in regard to the refusal of an inquiry in particular. One of the present difficulties is this : As we have seen, paragraph 1(1) requires only that an appellant state "... the substance of the matter relating to his appeal ... " in his notice of appeal. In their letter of November 2, 1989, the de Kantzows' solicitors, giving notice of appeal on their behalf, say this in regard to grounds of appeal :

                " ... the grounds of their appeal include -

                Our client may add to or amend the grounds of appeal."

28. That may not be very detailed. But persons are hardly to be blamed for thinking it is enough or possibly even more than enough. I say so because in the NKIL53, Section C, Ngau Tau Kok Road Case, decided on November 24, 1979, the Appeal Tribunal said this :

"After hearing argument we reached the conclusion that in, proceedings of this nature it was necessary only for their appellant who might well be the lay-client or the lay-client's architect and not a lawyer, to state the substance of the matter relating to his appeal. In our view the substance of this appeal was the decision of the Building Authority by letter dated September 2nd 1972, addressed to appellant's architect,  Mr Henry Ip, disapproving plans that had been submitted by Mr Henry Ip on behalf of the Appellant relative to the redevelopment of Section C of New Kowloon Inland Lot 53 at Ngau Taui Kok Road, Kowloon under the provisions of Section 16(1) (g) of the Buildings ordinance. This being the case it was open to the Appellant to develop any material which would bear upon the approval or disapproval of the general plans under Section 16(1) (g) and the letter of November 13th 1972 went no further then to give an advance indication to the Building Authority of one line of argument which would be developed by the Appellant at the hearing."

It is not clear whether that statement is meant to be of general application or restricted to cases involving section 16(1) (g) and, if so restricted, why. Certainly, the possibility of a notice of appeal prepared by a layman would seem far greater in unauthorised structure cases than section 16(1) (g) cases,   in which the lay-client is likely to be a developer represented not only by counsel but very often by leading counsel - as in the case in which the statement was made.

29. It seems tome that the Appeal Tribunal's ability properly to exercise its power to refuse an enquiry in appropriate instances would be greatly enhanced if appellants were required by statute to be far more informative about their appeals - either upon launching them or upon being called upon by the Appeal Tribunal to state their precise grounds in detail and fully. That does not affect the present case, however, for I am satisfied that it manifestly is not one for the exercise that power.

30. In the result, as I have indicated, the application for judicial review succeeds: the refusal is quashed by certiorari and an inquiry is directed by mandamus. It remains only for me to thank counsel on both sides for their assistance and to invite them to address me on costs.

[Counsel address further]

31. As far as costs are concerned, counsel, having been given an opportunity to put their heads together, are agreed on the order which I should make, which is simply an order that the costs of this application for judicial review be paid by the respondent to the applicants.

32. There was a question - raised by Mr Ismail for the de Kantzows - about the constitution of the Appeal Tribunal for the purposes off the inquiry which I have directed. Mr Yip, who appears today on behalf of the Appeal Tribunal, has indicated that it is the intention of the Appeal Tribunal to constitute itself differently for the purpose of the inquiry so that those persons who attended the closed session will not sit on the inquiry. That course is, if I may say so, a very sensible one. I wholly approve of it; and that being the intention, it is not necessary for me to say anything more in that regard.