TANG PING WAI AND ANOTHER v. BUILDING APPEAL TRIBUNAL AND ANOTHER

HCAL 802/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 802 OF 2000

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REASONS FOR RULING

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Introduction

1. This is the Applicants' application for leave to apply for judicial review. The decision challenged in this application was a written decision of the 1st Respondent ("the Tribunal") dated 26 February 2000. The application was heard inter partes on 25 July, 11 and 16 August 2000. At the end of the hearing on 16 August 2000, I refused to give leave and indicated that reasons for doing so would be handed down later. The following are those reasons.

Background Facts

2. The background facts are undisputed. The Applicants are husband and wife and the owners of a shop at Hollywood Road, Central, Hong Kong. The shop has been used to sell antique articles, especially ceramics of the Ming and Ching Dynasties.

3. Two structures of the shop are the subject-matter of this application (and the subject-matter of the written decision of the Tribunal):-

(a) a canopy projecting from the external wall of the building in which the shop is located. This canopy runs along the frontage of the shop. It takes the form of a rain/sun-shade and is covered on the top with Chinese-style tiles and gives the shop a traditional Chinese look;

(b) a bay-window which also runs along the frontage of the 1st floor of the shop serving as a show-window.

They were erected in about 1972. It is undisputed that the said structures are "illegal structures" which were constructed without the approval of the 2nd Respondent ("the Building Authority").

4. In exercise of its power under s. 24(1) of the Buildings Ordinance, Cap. 123, the Building Authority issued on about 24 June 1996 orders for the removal of the said structures. Pursuant to s. 44(1) of Cap. 123, the Applicants lodged an appeal to the Tribunal by a notice dated 13 July 1996. There is no need to go into the history of the appeal suffice it to say that in the said written decision dated 26 February 2000, the Tribunal dismissed the Applicants' appeal. The present application is made by the Applicants seeking to set aside the said written decision (as well as the said orders issued by the Building Authority).

The Grounds of Application

5. The following sub-headings are set out under the heading "Grounds on Which Relief is Sought" in the "Notice of Application for leave to apply for Judicial Review" dated 25 May 2000:-

(a) "(A) Factual Background";

(b) "(B) Legal Context";

(c) "(C) Legal Submissions".

6. While the sub-heading "(C) Legal Submissions" sets out the Applicants' arguments as to the errors allegedly made by the Tribunal, the precise grounds on which this application is based have not been expressly stated. At the Court's invitation, Mr Wu for the Applicants provided a document headed "Particulars of Grounds of [sic] which Relief in Supporting [sic]". This was replaced at the hearing on 16 August 2000 by a document headed "Amended Particulars of Grounds of [sic] which Reliefs [sic] are Sought" ("the Amended Grounds"). Nine grounds are put forward in the Amended Grounds:-

"1. In exercising its discretionary power under Section 24 of the Building Ordinance, the Building Authority failed to re-consider or to sufficiently re-consider the issuance of the demolition orders or to consider or to sufficiently consider to withdraw the same after the Applicants had presented evidence to the Building Authority on the safety of the Structures by way of a safety certificate issued by Mr Choy Bing Wing, a structural engineer.

2. The Building Authority failed to give any or any sufficient consideration to exercise its discretionary power under Section 24A of the Building Ordinance to issue orders to replace/substitute the demolition orders previously issued.

3. In considering the Building Authority's exercise of its discretionary power under Section 24 of the Building Ordinance, the Building Appeal Tribunal ("the Tribunal") had failed to direct itself the following matters:-

(a) the Building Authority failed to carry out any proper inspection of the Structures to test the safety of the same despite the Applicants had put forward evidence on the safety of the Structures by way of a safety certificate issued by Mr Choy Bing Wing, a structural engineer;

(b) the Building Authority failed to re-consider or to sufficiently re-consider the issuance or the withdrawal of the demolition orders after being presented with the above-mentioned safety-certificate by the Applicants.

4. In considering the Building Authority's exercise of its discretionary power under Section 24 of the Building Ordinance, Cap. 123, the Appeal Tribunal had misdirected itself of the following matters:-

(a) that the Applicants had the onus to prove the safety of the Structures;

(b) that the Applicant had a very high burden to prove the safety of the Structures.

(c) that the Building Authority was under no duty at all to carry out any proper inspection of the Structures despite the Applicants had put forward evidence that the Structures are in fact safe.

5. The Tribunal failed to consider or to consider sufficiently that the demolition orders can be replaced/substituted by orders made under Section 24A of the Building Ordinance.

6. The Tribunal failed to consider or to consider sufficiently to give directions to the Building Authority under Section 53(2) to carry out a proper inspection on the safety of the Structures so as to enable the Tribunal to consider to substitute the demolition orders with appropriate 24A orders.

7. The Tribunal misdirected itself in law that Section 24A did not apply in the Applicants' case.

8. In assessing the weight of the evidence of Mr Choy Bing Wing, the Tribunal wrongly took into the irrelevant considerations that Mr Choy gave hearsay evidence (re: original decorator).

9. In considering the safety of the Structures and the weight of the evidence of Mr Choy, the Tribunal failed to exercise its power to make inspection under Section 53(1) or to direct the Building Authority to make inspection under Section 53(2) in respect of the steel beams which hold the canopies, the size and spacing of the bolts and the spacing of the steel beams."

7. Grounds 1 to 6 and 9 of the Amended Grounds can be categorized as grounds relating to the Tribunal's failure to properly exercise its discretionary powers (whether under s. 24, s. 24A and/or s. 53(1) of Cap. 123). Ground 8 thereof is a challenge against the Tribunal's treatment of the expert evidence adduced by the Applicants. Finally, Ground 7 thereof is a complaint that the Tribunal misdirected itself on the applicability of s. 24A of Cap. 123.

Merits of this Application

8. Before dealing with the individual grounds advanced by the Applicants in this application, the following matters should be noted.

9. Mr Wu contends that both s. 24 and s. 24A of Cap. 123 confer discretionary powers on the Building Authority and the Tribunal. In other words, even if these provisions apply to a structure in question, the Building Authority and the Tribunal are not obliged to order its demolition, but can order remedial work to be performed instead.

10. Mr Wu accepts that in a case where the only fact (whether proven or admitted) is that a structure is an "illegal structure", it is usually legitimate for the Building Authority and the Tribunal to exercise their powers under s. 24 and/or s. 24A of Cap. 123 to order the demolition of the illegal structure.

11. By reason of the aforesaid concession, Mr Wu accepts that whether the Applicants can establish an "arguable" case regarding Grounds 1 to 6 and 9 of the Amended Grounds depends on whether they can establish that there is an "arguable" case regarding Ground 8 thereof. The words "'arguable' case" refer to the threshold which an applicant has to meet in an application for leave to apply for judicial review: see, for example, the observations of the Court of Appeal on this issue in Wong Chung Ki v. The Chief Executive, C.A.C.V. No. 1 of 2000.

12. I consider that Mr Wu is entirely correct in making the above concession. I do not find that there is any justification (whether by reason of legal principles or policy) that either the Building Authority or the Tribunal should be burdened with the need to establish the safety (or the lack thereof) of an illegal structure in the absence of any basis or indication showing that the structure is safe.

(1) Ground 8

13. The Applicants engaged a Mr Choy Bing Wing, a structural engineer, to carry out an inspection of the structures in question. Mr Choy concluded in his report that they were structurally safe. This report was placed before the Tribunal at the hearing before it. Further, Mr Choy was also called as a witness to testify before the Tribunal.

14. In its written decision, the Tribunal in effect refused to accept Mr Choy's testimony or conclusion. The Tribunal dealt with this aspect at pp. 4 to 5 of the written decision. The relevant passages are as follows:-

"The appellants engaged Mr Choy Bing Wing to survey the structures and he gave a safety certificate in respect of the structures.

Mr Choy gave evidence of his survey. He said he made visual inspections of the structures. His assessment and observation of the canopy and the "bay windows" projections were that there was no sign of corrosion, no sign of spalling concrete, no sign of hair cracks and no trace of water leakage. In short no sign of distress at all..... As for the "bay windows", Mr Choy did not do any survey short of stamping on the floor and found that they were made of timber. He did not seem to be worried about the fact that the "bay windows" had been used as show windows where huge ceramic vases were stacked one on top of the other right over the part of the "bay windows" which illegally projected over the pavement. He was very confident that they were safe. His assessment of safety of the canopy was based largely on his visual inspection although he did open up two small points with a screw driver to find that it was gypsum and not concrete...

Mr Choy might have been a very experienced structural engineer, but the Tribunal was of the view that his survey was too superficial to enable the Tribunal to accept his confident remark such as there would not be any potential danger during his lifetime or 6mm thick ceramic tile(s) falling on his head from the height of the canopy would not cause injury to his head. In fact, the focus of his survey was on the canopies and very little was said of the "bay windows" except on cross examination, he said he had stamped the floor with his feet. To some extent, he relied on his discussion with the original decorator of the canopies to come to a conclusion that there were steel beams inside the canopies. Whilst he told the Tribunal that the steal beams holding the canopies were bolted onto the walls of the building, he was not able to tell the Tribunal the size and spacing of the bolts, nor could he tell the spacing of the steel beams. The Tribunal was therefore unable to accept Mr Choy's "safety certificate". In any event, his "safety certificate" referred only to the canopies only and no reference was made of the "bay windows" structure which is also part of the Orders."

15. Ground 8 of the Amended Grounds makes the following complaint:-

"In assessing the weight of the evidence of Mr Choy Bing Wing, the Tribunal wrongly took into the irrelevant considerations that Mr Choy gave hearsay evidence (re: original decorator)."

16. With respect to Mr Wu, I do not find that there is any substance in this complaint. When the Tribunal observed that Mr Choy relied on his discussion with the original decorator, this was made in the context that Mr Choy has not performed an independent verification of the structural safety of the canopy. The said observation was made in a paragraph which contains the following comments:-

(a) that Mr Choy's survey was too superficial (referring to the purely visual inspection made by him) to enable the Tribunal to accept his confident remark that there would not be any potential danger;

(b) that Mr Choy was unable to tell the Tribunal things like the size or spacing of the bolts, or the spacing of the steel beams.

17. In the above context, I find that the observation that Mr Choy was relying on "hearsay" information was a relevant matter which a reasonable tribunal properly directed could legitimately take into account. This matter could properly be considered to support the Tribunal's conclusion that Mr Choy's survey was too superficial.

18. No separate complaint has been made in the Amended Grounds about the validity of the Tribunal's conclusion that because Mr Choy's survey was too superficial, the Tribunal was unable to accept his conclusion regarding the structural safety of the structures. Even if such a complaint had been made, in view of the matters taken into account by the Tribunal, I consider that the Tribunal's conclusion was one which a reasonable tribunal could legitimately have reached.

(2) Grounds 1 to 6 and 9

19. I have found that the Applicants have not been able to establish any "arguable" case as regards Ground 8 of the Amended Grounds. In view of the concession made by the Applicants (referred to under the heading "Merits of this Application"), I do not consider that there is any substance in Grounds 1 to 6 or 9 thereof.

(3) Ground 7

20. At p. 6 of the written decision, the Tribunal said:-

"Section 24A [of Cap. 123] did not apply in this case because the allegation here was building works not complying with provisions of the Buildings Ordinance."

21. S. 24(1) of Cap. 123 provides:-

"24. Order for demolition, removal, or alteration of building, building works or street works

(1) Where any building has been erected, or where any building works or street works have been or are being carried out in contravention of any of the provisions of this Ordinance the Building Authority may by order in writing require-

(a) the demolition of the building, building works, or street works; or

(b) (Repealed 43 of 1993 s. 6)

(c) such alteration of the building, building works or street works as may be necessary to cause the same to comply with the provisions of this Ordinance, or otherwise to put an end to the contraventions thereof,

and in every case specify the time within which the demolition, alteration or work required by such order shall be commenced and the time within which the same shall be completed. (Amended 16 of 1996 s. 7; 43 of 1993 s. 6)"

22. Further, s. 24A of Cap. 123 provides:-

"24A. Order to cease or remedy dangerous works

(1) Where any building works or street works have been or are being, carried out in such a manner as, in the opinion of the Building Authority, will cause, or will be likely to cause, a risk of injury to any person or damage to any property, the Building Authority may, by order in writing, require that such work as he may specify therein be carried out, to ensure that the works will cease to constitute such a risk. (Amended 43 of 1993 s. 7)

(2) An order made under subsection (1)-

(a) may specify-

(i) the manner in which the work specified in the order shall be carried out;

(ii) the time before which the work shall be commenced and the time by which it shall be completed;

(iii) that the work shall be carried out with due diligence to the satisfaction of the Building Authority; and

(b) shall be addressed to and served on-

(i) in the case of completed works, the owner thereof; and

(ii) in any other case, the person for whom the works are being carried out or his agent."

23. I agree with Mr Wu's submissions that there is at least an "arguable" case that there is an overlap in the coverage of s. 24 and s. 24A. It is therefore "arguable" that the Tribunal's conclusion that s. 24A did not apply was wrong.

24. But even if s. 24A is applicable to the Applicant's case, in view of the similarities in the wordings of s. 24 and s. 24A, I find that, at least for the purpose of this application, there is no difference in the manner in which the discretionary powers conferred by these 2 provisions are to be exercised.

25. As stated in the earlier part of this "Reasons for Ruling", I find that the Tribunal has correctly concluded that the Building Authority did not err in ordering the demolition of the structures in exercise of its power under s. 24 of Cap. 123. In view of this conclusion, even if the Tribunal had not erred in concluding that s. 24A was inapplicable, the Tribunal would also have come to the same conclusion as regards the way in which the discretionary power under s. 24A of Cap. 123 ought to be exercised.

26. I therefore do not find that Ground 7 of the Amended Grounds justifies leave to be given.

Conclusion

27. For the above reasons, this application should be (and was) refused.

Costs

28. The Respondents asked for the costs of this application and Mr. Wu did not make any submissions in opposition. In view of the usual rule that costs should follow the event, I consider that Mr Wu was entirely correct in not objecting to the order that costs of this application are to be paid by the Applicants to the Respondents to be taxed if not agreed.