HKSAR v. TSE YEE PING

HCMA 694/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 694 OF 2014

(ON APPEAL FROM STS 10681/2013)

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J U D G M E N T

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1. The Appellant was summonsed for the offence of “Failing to comply with an order of the Building Authority without reasonable excuse”[1]. He appeared before a Deputy Special Magistrate (hereinafter called the Magistrate) and was convicted after trial. He now appeals against the conviction.

2. The trial was conducted in Chinese.  However, submission of both parties at the original trial was prepared in English.  So was the Statement of Findings prepared by the Magistrate.  For the purpose of this appeal, the Perfected Grounds of Appeal as well as the written submission of the Appellant was prepared in English.  In the circumstances, parties are in consensus that the judgment of this appeal be prepared in English.

PROSECUTION CASE

3. The Appellant is an indigenous villager.  He owns a piece of land  in the New Territories by virtue of a New Grant of 14 December 1981.  He built a 3-storey village house on this land.

4. The subject matter in this case is a canopy erected on the roof of this house.

5. Evidence of the prosecution was adduced by way of Admitted Facts[2] which contained the following information :

(1) The Appellant has been the owner of the premises since 14 December 1981;

(2) An inspection on 29 January 2011 revealed that there was a canopy on the roof of the premises;

(3) The Shatin District Lands Officer confirmed on 9 February 2011 that :

(a)  The canopy had not been approved by the Lands Department;

(b)  It was not exempted works under the Buildings Ordinance (Application to the New Territories) Ordinance (hereinafter called the NT Ordinance);

(c)  It’s erection had not been approved or consented by the Building Authority; and

(d)  It was not exempted works under section 41(3) of the Building Ordinance.

(4)  On 30 March 2011, the Building Authority made an order under section 24(1) of the Buildings Ordinance (hereinafter called the Order) [3]ordering the Appellant to remove the canopy and reinstate the parts of the building so affected by the canopy within 30 days after service of the Order;

(5)  A compliance inspection on 4 July 2011 revealed that the canopy remained intact;

(6)  On 17 August 2011, the Building Authority issued the first warning letter to the Appellant;

(7)  On 11 April 2012, another inspection revealed the canopy was still intact;

(8)  On 20 June 2013, the second warning letter was issued;

(9)  On 6 August 2013, the canopy was found intact in an inspection.

DEFENCE CASE

6. At the trial, the Appellant elected to testify.^[4] He was the only witness called in the trial.  The Magistrate accepted his testimony to be true and accurate and gave it full weight.[5]

7. According to the Appellant, the building was built in 1985 and was built to the maximum allowable dimensions as stipulated in the New Grant, i.e. 35 feet (length) x 20 feet (width) x 25 feet (height).  The District Land Office issued a Certificate of Compliance which is dated 1 July 1985.

8. He started to build the canopy in 1986.  The works completed by 1987.

9. In 2011, he enlarged and strengthened the canopy. The canopy was enlarged from 400 square feet to about 460 square feet.  The dimensions of the canopy then became approximately 6.5 meter (length) x 5 meter (width) x 2.7 meter (height).

10. The works carried out was merely maintenance and repair works.  There were changes regarding building material : from metal water pipes / quadrate pipes to GMS quadrate pipes which are less susceptible to rust.  Columns and crossbeams were strengthened so that the canopy became more sturdy.

FINDINGS OF THE MAGISTRATE

11. As the prosecution case was presented by way of Admitted Facts and the testimony of the Appellant was accepted by the Magistrate.  Issues of the case are legal only.

12. Whilst Counsel representing the Appellant at trial[6] had presented lengthy written submission, the Magistrate said the issues of the case are :

(1)    Had the canopy been in existence prior to the NT Ordinance and the related Regulations coming into effect; and

(2)    Whether the Order falls under section 24 of the Buildings Ordinance.

13. In addressing the issues, the Magistrate found that the changes, maintenance or repair done in 2011 had made the canopy a new canopy as there were substantial changes both in structure and form.

14. She also found the works done to the canopy building works within the meaning of the Buildings Ordinance.  As she did not regard the canopy the same as it had originally been erected, she further found that it could not be regarded as being exempted from the Buildings Ordinance and the related Regulations.

15. In the premises, she found that the works are unauthorized under the Buildings ordinance and that the Order was rightly made and valid. 

16. The Appellant had not obtained any approval or consent from the Buildings Department, nor was there a Certificate of Exemption under the NT Ordinance.

17. As the Magistrate found that the overall height of the building exceeded the height limit stipulated in the NT Ordinance, she was of the view that the building is not exempted from the regulatory provisions.

18. All in all, the Magistrate found that the Appellant had contravened section 14 of the Buildings Ordinance.  She said she found no evidence in respect of any reasonable excuse the Appellant could rely upon for failing to comply with the Order.

19. As it was her finding that the canopy amounted to a new structure erected in 2011, she found the submission that section 40(1BA) of the Buildings ordinance lacks retrospective effect irrelevant.

GROUNDS OF APPEAL

20. The Appellant is represented by Mr KM Chong and Mr Darren Poon[7] who also represented the Appellant at trial.  They advanced 13 grounds of appeal, which may be summarized as follows :

(1) The Appellant was deprived of a fair trial as the Magistrate made a finding departed from the prosecution case;

(2) There was no evidence to support the following findings of the Magistrate :

(a) The works constituted ‘unauthorised building works’ within the meaning of the Building Ordinance; and

(b) The works created a substantial change both in structure and in form thereby making the canopy of new structure;

(3) The Magistrate failed to consider the effect of individual relevant statute and / or the combined effect of the statutes upon the canopy which was found to have already been built and completed in existence prior to 7 October 1987;

(4) The Magistrate failed to consider the defence of reasonable excuse;

(5) The Magistrate failed to consider whether only the 2011 extension of the canopy constituted unauthorized building works and if so whether the Appellant should be found guilty as the information in the summons complained of the entire canopy;

(6) The Magistrate erred in not holding that, prior to 16 October 1987, there was no concept of unauthorized building works (hereinafter called UBW) in the New Territories and / or such concept did not apply to the type of village house in question, and therefore there was no UBW to trigger off the power to issue the Order and to prosecute for non-compliance of the Order;

(7) The Magistrate erred in not holding that the canopy was lawfully built and did not constitute UBW as it was in existence prior to 7 October 1987, before the Buildings Ordinance (Application to the New Territories), Cap. 121 (hereinafter called the New NT Ordinance) which does not have retrospective effect was enacted;

(8) The Magistrate erred not to have held that the New NT Ordinance does not have retrospective effect and that the change of the law on UBW did not outlaw building works which had already been completed;

(9) The Magistrate erred in not holding that there was no evidence to show that the enlargement of the already existing canopy and replacement of water pipes fall within the definition of building works or exempt work as provided in the Building Ordinance;

(10) The Magistrate erred in not dismissing the summons on the ground that there was no contravention of any provisions of the Buildings Ordinance which did not apply to any structure completed prior to 16 October 1987 even if it had been built without authority;

(11) In the absence of expert evidence, there was no evidence to show whether the works fall within the definition of building works or exempt works as provided in the Buildings Ordinance; and

(12) The Magistrate erred in not finding that the Appellant had a reasonable excuse not to comply with the Order.

(13) The Magistrate erred in finding that the canopy on the building had exceeded the maximum height of 7.62 meter as allowed in the New NT Ordinance.

SUBMISSION OF THE RESPONDENT

21. Counsel representing the Respondent, Ms Micky Fung, SPP, put forward the following main points in submission :

(1) The Magistrate was justified in making the finding that the canopy presently existing is a new canopy.

(2) The building works in relation to the canopy therefore should not be regarded as being exempted from the Buildings Ordinance.

(3) Even if the canopy is regarded as the one built in 1986, there is still a contravention of the relevant statutory provisions as it exceeds the maximum height as permitted.

(4) On either basis the building works are unauthorized and therefore the Order was rightly made and valid.

(5) There was non-compliance of the Order and the Magistrate was entitled to find that there was no reasonable excuse for failure to comply.

22. The Respondent accepted that all the relevant statutes do not have retrospective effect.

23. It was also accepted that in considering whether the canopy was new, the Magistrate departed from the original prosecution case. However, Ms Fung submitted that no injustice has been caused as the Magistrate had made herself clear that she was to consider whether the canopy was new and the Defence had been given sufficient opportunity to address the issue. 

DISCUSSION AND CONSIDERATION

24. Having discussed with Counsel, as some of the grounds are inter-related, the grounds of appeal can be grouped into the following issues :

(1) Did the Magistrate err in finding that the works in 2011 made the canopy a new structure?

(2) If this finding is correct, has there been an unfair trial as the Magistrate had departed from the prosecution case?

(3) If the Magistrate erred in finding that the canopy was new, was building of the original canopy lawful, in the sense that no regulatory provision has been contravened?

(4) If the building works of the original canopy was lawful, was it proper to issue the Order?

(5) If such building works were unlawful, should the conviction stand?

(6) If the Order is proper, was there reasonable excuse for the non-compliance?

25. It appears to me that discussion and consideration of these issues are sufficient in addressing all the grounds of appeal.

Issue 1 : Did the Magistrate err in finding that the works in 2011 made the canopy a new structure?

26. If the finding that it was a new canopy is safe, the issue of retrospective effect of the relevant statutes does not arise.  The works were carried out at a time when the current version of the Buildings Ordinance and NT Ordinance has become effective.

27. The Magistrate has these to say in relation to the relevant evidence and her observation :

“6.  According to the Appellant’s own evidence, he built a 3-storey building on the Premises in 1985 and it was built to the maximum allowable dimensions stipulated in the New Grant, i.e. 35 ft (length) x 20 ft (width) x 25 ft (height).  A Certificate of Compliance dated 1 July 1985 was issued by the District Land Office (“the DLO”) to the Appellant.

7.   The Appellant further gave evidence that he built a canopy on the roof of the aforesaid building on the Premises in 1986, and the building works of the same was completed by 1987.  Later in Jan 2011, the Appellant enlarged and strengthened the canopy.  The Appellant testified that he had enlarged the canopy from 400 ft to 2/3 of 700 ft.  He agreed that since then, the dimension of the canopy was approximately 6.5m (length) x 5m (width) x 2.7m (height) as reported in the “New Territories Exempted Houses Reporting Scheme for Unauthorized Building Works Report Form” (Exhibit P10).

8.   The Appellant stressed that the building works he carried out on the Canopy was merely maintenance and repair works.  The changes he made regarding building materials were e.g. from metal water pipes (水喉通) / quadrate pipes (方通) to GMS quadrate pipes (鉛水方通) that are less susceptible to rust.  He also strengthened the columns (柱) and crossbeams (橫樑) so the Canopy becomes sturdier.  The size of the Canopy had also been increased by 20 – 30 ft.

9.   Having carefully considered the evidence of the Appellant, I find the Canopy in question no long the same canopy the Appellant claimed when first built in 1986.  I find the so-called “changes” or “maintenance” or “repair” done in 2011 had made the Canopy a new canopy because both the size and building material is different.  Even if the Canopy was not “new” for each and every nail and column, I find the change to be a substantial change both in structure and in form.”[8]

28. Counsel for the Respondent, Ms Mickey Fung, SPP, supported the finding of the Magistrate.  She submitted that the changes were substantial as the size of the canopy was increased by some 17%, the building materials were changed, and the columns and crossbeams were strengthened.

29. There was no evidence that the original canopy had been pulled down and a new one erected.  Indeed, this was not the effect of the testimony of the Appellant, who offered the only available source of evidence in this regard.

30. I accept that, in certain circumstances, taking into account the nature of work and degree of changes, it may be justified to say that a new structure has been erected as a result of the works, especially as the structure is one as simple as the canopy in question. 

31. In the present case, it was the submission of Mr Chong that the evidence lacks details[9]. There was no firm evidence as to how many pipes have been replaced.  There was no evidence as to whether the cover has been replaced. 

32. Whilst the evidence of the Appellant gives a strong impression that all the pipes have been replaced, it was not definite nor clear.  The overall evidence prevents me from agreeing to the conclusion that this is a new canopy, although there was certainly an extension of the canopy and the extension was substantial.

33. In her written submission, Ms Fung pointed out that the prosecution was in possession of evidence that the canopy was not in existence between the period January and October 2010 but such evidence was not produced during the prosecution case at the trial.  As the defence case unfolded when the Appellant testified, the prosecution applied to re-open its case and introduce such evidence.  The application was refused by the Magistrate. What Ms Fung informed the Court now is not something I am entitled to take into account in forming my view.

34. My finding against the Magistrate is not sufficient to dispose of the appeal.  Magistracy appeal takes the form of hearing.[10] I am under a duty to rehear the case based on the evidence adduced before the Magistrate and accepted by her.

Issue 2 : Has there been an unfair trial as the Magistrate had departed from the prosecution case?

35. Mr Chong pointed out that the basis of the conviction was the finding of the Magistrate that the repair and maintenance works carried out in 2011 made the canopy a new structure.  However, it was the prosecution case that the existence of the canopy constituted UBW.  The defence was run on this understanding and therefore focused on legality of the construction of the canopy back in 1986.  Had the prosecution put forward a case as found by the Magistrate, a different defence would be conducted, including calling expert evidence to show the meaning of and difference between ‘buildings works’ and ‘minor works’. According to section 14AA of the Buildings Ordinance, section 14(1) which provides for the requirement of approval and consent for commencement of building works does not apply in respect of minor works commenced under the simplified requirements.

36. It was the submission of Mr Chong that as the Magistrate found a case completely different from that of the prosecution without alerting parties, the Appellant has suffered substantial injustice in that he had not been afforded a reasonable opportunity to deal with the case being considered by the Magistrate.

37. On the other hand, Ms Fung submitted that as the defence had been alerted during the exchange between the Magistrate and Counsel, the Appellant had not been prejudiced. The Defence had been given an opportunity to response.  There was no application of any sort from the Defence.

38. In the light of my finding of Issue 1, this issue becomes academic and I do not see the need to deal with it, although I find the submission of Ms Fung persuasive that there had not been an unfair trial even if there was a departure from the original prosecution case.

39. What I am to do is to rehear the case by considering the evidence already adduced and decide whether the prosecution case, as it originally intended to be, is proved.  The originally intended prosecution case, as accepted by Ms Fung, was simply that the Appellant failed without reasonable excuse to comply with the Order.  In the final submission, Counsel representing the prosecution at trial said, “the basis of the present prosecution is that D erected the canopy in the premises without having first obtained from the Building Authority his written approval and consent, nor had he obtained a certificate of exemption.”[11]

Issue 3 : Was building of the original canopy lawful?

40. The thrust of Mr Chong’s submission is this.  As the village house was built in 1985, the law as provided in the Buildings Ordinance (Application to the New Territories) Regulations, Cap. 322, which was later repealed (hereinafter called the Old NT Regulations) is relevant.

41. It was the submission of Mr Chong that at the material time there was no concept of UBW in the New Territories and / or such concept did not apply to the type of village house in question.  As such, he further submitted that there was no contravention of any provision of the Buildings Ordinance and as a result the Magistrate erred in not dismissing the summons.

42. For the reasons I am to set out, I do not agree to this view.

43. As at 1985, certain regulatory provisions in the Buildings Ordinance are not applicable in the New Territories by virtue of regulation 3 (1) of the Old NT Regulations[12].

44. Those regulatory provisions include sections 14 and 24 which are relevant to the present case.

45. For the exclusion provision of regulation 3(1) to be applicable, the height limit as stipulated in regulation 3(2) of the Old NT Regulations has to be met : 7.62 meter.

46. This issue involves a finding of fact as to whether the house exceeded the stipulated height of 7.62 meters.

47. The Magistrate found that the height was exceeded.  She was of the view that the height of the canopy should be included in the measurement.  If this is legally right, her conclusion is supported by evidence as it was the evidence of the Appellant that the building itself was built up to the maximum permissible height.

48. Height is defined in the Old NT Regulations as :

“height, when used in relation to a building, means the height measured to the highest part of the building, or, in the case of a building which is roofed, to the level of the apex in the case of a pitched roof or to the level of the main roof in the case of a flat roof”[13].

49. It was the submission of Mr Chong that as the building has a flat roof, height should be measured by reference to the level of the main roof.  On the other hand, Ms Fung submitted that height should be “measured to the highest part of the building”.

50. In this regard I rule in favour of the Appellant as this is “a case of a building which is roofed”.  Regulation 3 of the Old NT Regulations is applicable in the present case.

51. By virtue of regulation 3(1), certain regulatory regulations in the Buildings Ordinance were not applicable to certain building works as set out in the regulation.

52. Mr Chong relied on regulation 3(1)(b) and submitted that the house was one to which the regulatory provisions are not applicable.  Regulation 3(1)(b) provides that the regulatory provisions

“shall not apply to building works for the alteration of or which are otherwise connected with a building which is, or will when such works have been carried out, be a building to which this regulation applies.”

53. In my judgment, the exclusion provision of regulation 3(1)(b) is not applicable in the circumstances of the present case. I do not consider erection of the canopy building works was for the alteration of the building nor was building works in connection with the building.  The canopy is of course connected physically to the building, however in my judgment erection of it is not building works in connection with the building.

54. As the exclusion provision is not applicable, section 3 of the then existing version of the Buildings Ordinance (Application to the New Territories)[14](hereinafter called the Old NT Ordinance) is relevant.  Section 3 of the Old NT Ordinance provides that :

“On the commencement of this Ordinance, the principle Ordinance (the Buildings Ordinance[15]) shall apply, subject to the provisions of this Ordinance, in the New Territories.”

55. By virtue of this section, and my ruling in relation to regulation 3 of the Old NT Regulations, the Buildings Ordinance then in force applied in the New Territories, covering the building and the canopy in question.

56. The most relevant provision of the Buildings Ordinance (hereinafter called the Old Buildings Ordinance) which was in force at the time the canopy was originally built[16] is section 14.

57. Section 14(1) of the Old Buildings Ordinance provides :

“Save as otherwise provided, no person shall commence or carry out any building works or street works without having first obtained from the Building Authority –

(a) his approval in the prescribed form of documents submitted to him in accordance with the regulations; and

(b)   his consent in the prescribed form for the commencement of the building works or street works shown in the approved plan.”

58. Building works is defined in the Old Buildings Ordinance as including “any kind of building construction, site formation works, ground investigation in the scheduled area, repairs, demolition, alteration, addition and every kind of building operation, and includes drainage work.”

59. In my judgment, erection of the canopy falls within the definition of building works as provided in the Old Buildings Ordinance.

60. There was a certificate dated 1 July 1985 issued by the Shatin District Lands Office certifying that all the positive obligations imposed on the Grantee have been complied with to his satisfaction.[17]  It only serves as a certification of compliance at the time of the grant obligations, not to the extent of representing that the relevant regulatory provisions have been observed or are not required to be observed.

61. The definition of building works in the current version of the Buildings Ordinance is almost identical with that as provided in the Old Buildings Ordinance.  The only difference is that foundation works is included.

62. It follows that the extension of the canopy is also building works.

63. There is no dispute that as a matter of fact no approval or consent had been obtained for either the canopy originally built or its extension. 

64. For these reasons, the original canopy was built in contravention of the regulatory provisions then in force.  The extension was also built in contravention of the prevailing regulatory provisions. 

Issue 4 : Was it proper to issue the Order?

65. The Order was issued pursuant to section 24(1) of the current Buildings Ordinance, which provides :

“… where any building works … have been … 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 work; or

(b) (repealed);

(c)  such alteration of the … building 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 …”

66. The Order was made on the basis, as stated in the Order, that building works “have been carried out without having first obtained from (the Building Authority) the approval of building plans and consent for the commencement of such building works required by section 14 of the Buildings Ordinance”.

67. The Order requires removal of the canopy and reinstating the parts of the affected building.

68. The Order was made on the simple basis that the canopy was noticed.  By virtue of section 24 of the Buildings Ordinance, the Building Authority has the power to issue such an order.  What then known to the Building Authority were[18] :

(a) there was no permission from the Lands Department for the additional structure; and

(b) it is not exempted works under the NT Ordinance.

69. The analysis in relation to issue 3 is only necessary as, subsequent to issuing of the Notice, the assertion that the canopy was originally built at a time before the present version of the relevant statutory provisions came into existence.  It was not something known to the Authority at the time the Order was made.

70. In my judgment, issuing of the Order was in the circumstances lawful and justifiable.

Issue 5 : Should the conviction stand?

71. The Appellant is charged for an offence contrary to section 40(1BA) of the Buildings Ordinance which was only enacted in 2004. It was submitted that as the canopy was originally erected much earlier than that date, the Appellant cannot be charged for this offence unless the provision has retrospective effect.  In support of this submission, Mr Chong cited Article 12 of the Hong Kong Bill of Rights Ordinance[19] and R v Tran Viet Van[20].

72. I entirely agree that the provision does not have retrospective effect.

73. However, at the time the canopy was noticed, section 40(1BA) has already come into effect.

74. For the reasons mentioned above when Issues 3 and 4 were addressed, the Order was properly issued.  There has been non-compliance of the Order.  Unless there was reasonable excuse, the conviction should stand.

Issue 6 : Was there reasonable excuse?

75. Section 24(1A) of the Buildings Ordinance provides that section 24(1) does not apply in respect of minor works commenced under the simplified requirements.  According to section 2 of the Buildings Ordinance, simplified requirements are requirements prescribed in the regulations as simplified requirements for the purposes of this definition.  There is no evidence before the Magistrate so that a finding that the works were minor works could be made.

76. There is also no evidence before the Magistrate so that a finding that the works were exempt work could be made.  Ms Fung pointed out that it was an admitted fact that the works were not exempt work.  She was referring to paragraph 4 of the Admitted Facts. 

77. Notwithstanding there was criticism at the appeal against the Magistrate for deciding the case in departure of the prosecution case, thereby causing injustice and one of the injustice is that the Defence without notice was not able to call evidence in relation to minor works and exempt works, this argument is not available to the Appellant now as the determination is based on the prosecution case as it was originally intended and on the basis that the Appellant believed it to be at the trial.  Under such belief, no evidence in relation to minor works and exempt works has been adduced.

78. The case put up by the Appellant is that only the extension might be unlawful, the original canopy is not.  The Order however requires him to demolish the whole canopy, the original and its extension.  A reasonable excuse therefore existed for the Appellant not to comply with the Order. 

79. In the light of my finding, it can only be said that the Appellant was at most laboring under a mis-understanding of the law.  It is not a reasonable excuse.

80. In this connection, I also observe that even if the Order is only valid in relation to the canopy extension, I do not consider it a reasonable excuse for the Appellant simply to ignore the Order without taking any step to clarify the position with the Authority.  What he had done was making a report under the Reporting Scheme for UBW, for which he received a reply that the Authority was not to deal with his report further on the ground that an order had been issued.

81. I have also considered the matter in the light of the certificate dated 1 July 1985 issued by the Shatin District Lands Office, as mentioned in paragraph 61 above.  It mentioned that the building erected on the lot is exempt from the provisions of the Buildings Ordinance. From the context it is obvious and clear that what referred to was the building itself, not something erected on its roof afterwards.  Besides, the Appellant was fully aware that the village house was built up to the maximum of the permitted dimensions, in particular the height.

82. In all the circumstances, I do not consider there was any reasonable excuse for not complying with the Order.

CONCLUSION

83. The Appellant failed to persuade me that the Order was not valid and that there was reasonable excuse for the Appellant not to comply with it.

84. I therefore dismiss this appeal.

OBITER

85. Whether it is open to a defendant in a criminal trial to challenge the validity of a statutory or regulatory order was discussed and considered in cases such as HKSAR v Sky Wide Development Ltd.[21], HKSAR v The Incorporated Owners of No. 10 Bonham Strand[22] and HKSAR v Joy Express Ltd (N0.2)[23].

86. In Incorporated Owners of No. 10 Bonham Strand, McMahon J said :

“I particularly emphasise that to allow such a defence may mean the magistrate would be required to determine in a criminal trial issues of considerable public importance without the Director having any standing as a party to the proceedings. He could not appeal any such decision. I do not think any sensible difference can be drawn between orders in rem as in Boddington’s case and orders in personam as in the present case. Matters of statutory interpretation of building or other regulatory codes of practice may arise in both sorts of case so as to establish an interpretation of law or procedure without the relevant authority having an opportunity to argue its position before the court. That, in my view, is a situation to be avoided.”

87. In Joy Express Ltd (No. 2), Tong J said :

“15. In para 8 of his statement of findings, the magistrate had summarized the main points raised by Mr Choy at the trial and his analysis was as follows:

‘…

15. In our present case, Part VI of the Buildings Ordinance provides for the mechanism of appeal by ‘a person aggrieved by any decision made by the Building Authority in the exercise of a discretion conferred on him under the Ordinance’.  This falls within the second scenario in Boddington.  The defendant cannot challenge the validity of the Order in this Court.”

…

“22. In the circumstances, having considered the learned magistrate’s reasoning and assessed the submissions by the respondent, I could find no basis to disturb the conviction. I would therefore dismiss the appeal accordingly.”

88. In Sky Wide Development Ltd., Deputy Judge (as he then was) Andrew Chan said he entirely concurred with the observation of McMahon J.

89. In my judgment, the same principle applies to a prosecution arises from non-compliance of an order issued under the Buildings Ordinance.  For reasons including what McMahon J had provided, the court hearing a prosecution brought for non-compliance of the order is in most circumstances not an appropriate venue to determine validity of the order.  If there is other channel to challenge the validity of an order which is on the face properly issued, permitting a defendant to run this as defence is something to be avoided.

90. The argument that it was not up to the Appellant to challenge at trial the validity of the Order indeed was advanced by Counsel representing the Prosecution[24]. She further submitted that the proper channel for the Appellant to challenge the validity of the Order is to lodge an appeal pursuant to Part 6 of the Buildings Ordinance.

91. The Magistrate, however, did not address this issue and did not decide the case along this line.  This issue was not raised again in the appeal.  It was against this background that I have not decided this appeal on the basis of the principle I consider accurate and applicable in a case like the present one.

[1] Contrary to section 40(1BA) of the Buildings Ordinance, Cap. 123.

[2] Page 4 in the Appeal Bundle.

[3] Exhibit P5.

[4] His testimony was summarized in paragraphs 6 – 8 in the Statement of Findings.

[5] See paragraph 4 of the Statement of Findings.

[6] Mr KM Chong and Mr Darren Poon, who also represented the Appellant.

[7] Without disrespect to Mr Poon, for convenience sake I will only refer to Mr Chong later.

[8] Paragraphs 6 – 9 of the Statement of Findings.

[9] Relevant part of the evidence is at page 137 and 150 – 153 in the Appeal Bundle.

[10] As decided by the Court of Final Appeal in Chou Shih Bin v HKSAR, (2005) 8 HKCFAR 70.

[11] See page 13 in the Appeal Bundle.

[12] Buildings Ordinance (Application to the New Territories)Regulations, Cap.322, which came into force on 1 July 1967.

[13] Section 2 of the Old NT Regulations.

[14] Cap. 322, Laws of Hong Kong, enacted in 1960.

[15] My addition, adopting the definition as provided in section 2 of this Ordinance.

[16] Cap. 123, Laws of Hong Kong, the 1985 edition.

[17] In exhibit P1, page 66 in the Appeal Bundle.

[18] According to paragraph 4 of the Admitted Facts.

[19] Cap 383 of the Law of Hong Kong.

[20] [1992] 2 HKCLR 184.

[21] [2013] 1 HKLRD 613.

[22] HCMA 239/2004.

[23] [2005] 2 HKC 147.

[24] Ms Choi Sze Man.