BENVER COMPANY LTD v. APPEAL TRIBUNAL (BUILDINGS ORDINANCE)

HCAL 217/2023

[2023] HKCFI 842

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 217 OF 2023

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D E C I S I O N

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A.  Introduction

1.  By a Form 86 dated 14 February 2023 (since amended: see below), the Applicant seeks leave to apply for judicial review to challenge two decisions (“Two Decisions”)  of the Appeal Tribunal (Buildings Ordinance)  (“BAT”)  made as directions by the Chairman of the BAT on 26 January 2023.

2.  The Two Decisions were directives made in relation to two Building Appeal cases being heard together, in which the Applicant is the Appellant.  The relevant directions (“Aerial Photos Direction” and “Site Inspection Direction” respectively)  were that:

(1)  The parties should provide, within 14 days, colour aerial photos (“Aerial Photos”)  of the property the subject-matter of the appeals (“Property”).

(2)  There should be a joint site inspection (“Site Inspection”)  of the Property, the Main Roof and the Upper Roof of the material part of the Property.

3.  As may be thought obvious, an attempt to challenge intermediate and procedural directions made within tribunal proceedings does not seem likely to be fertile ground for a judicial review challenge.  Nevertheless, bearing in mind the chronology, and awaiting an initial response from the putative interested party (“BA”), I granted the requested urgent temporary stay of the Two Decisions on 16 February 2023. I did so without knowing that the BAT had actually decided not to proceed with the Site Inspection, which it told the parties on 15 February 2023.

4.  The Solicitors for the Applicant appeared to have misunderstood my grant of a temporary stay as the grant of leave to apply for judicial review.  It was not.  I made this point clear by my letter of 20 February 2023, which also stated that I was awaiting the BA’s response before I would take further action.

5.  Shortly thereafter, the BAT gave further directions on 23 February 2023, to stay the parties’ closing submissions pending the decision in this application.

6.  The BA provided its Initial Response to the Form 86 on 17 March 2023, in accordance with the deadline set by me.

7.  In light of the materials, and where the Applicant requested an oral hearing in the Form 86, I fixed a date for that oral hearing of the application for leave to apply for judicial review, and any further interim order.

8.  Subsequently, on 3 April 2023, the Applicant’s solicitors wrote to the Court, asking that the letter be treated as an application for leave to amend the Form 86, in the form of the draft Amended Form 86 (“AF 86”)  provided with the letter.  The hearing proceeded on the basis of the intended challenge identified in the AF 86.  The main amendment relates to a proposed Ground 6 of intended review: see below.

9.  Following the hearing, this is my Decision.

B.  Material Background

10.  For the purposes of resolving this application, there is no need for any lengthy recitation of the background facts.  The following material matters will suffice.

11.  The Applicant is the registered owner of the Property, which comprises Unit D in two semi-connected residential blocks.  Unit D is on the 1/F and 2/F with a roof.

12.  The BA carried out inspections of that part of the roof belonging to Unit D (“Portion D”)  after receiving reports that there were unauthorised building works (“UBWs”)  being carried out. Subsequently, the BA issued two building orders, requiring the Applicant to demolish five items of alleged UBWs.

13.  On 9 May 2019, the Applicant filed its Notice of Appeal against these two orders.  The relevant two building orders the subject of that appeal were subsequently withdrawn, and do not form any part of these intended judicial review proceedings, except as to provide background for one of the grounds of appeal and judicial review.  Nevertheless, costs issues remain to be resolved in that appeal.

14.  A new building order was issued on 24 June 2019, requiring the Applicant to demolish two items of alleged UBWs.  Although the wordings of those two items in the building order are slightly different from items in the previous building order, it is said by the Applicant that they are effectively the same two items.

15.  On 12 July 2019, the Applicant filed a Notice of Appeal against the new building order.

16.  The two ‘parallel’ appeals are now the subject matter of the proceedings before the BAT.

17.  Preliminary hearings have been held in relation to the issue of “good cause”, as provided for in section 49 of the Buildings Ordinance Cap 123 (“BO”).  The second preliminary hearing took place on 14 December 2022.

18.  In relation to the second appeal, a set of site inspection photographs with plans was adduced by the BA to show the two alleged items of UBWs as set out in the new building order.  The Applicant disputed the location of the UBWs, its case being that the UBWs are not on its roof.  The Applicant also challenged the photographs and contended that they did not show or sufficiently show that the objects shown were actually located in or at Unit D. The hearing was part heard and adjourned to 15 February 2023.

19.  During the adjournment, the BAT made the Two Decisions.  It apparently did so without consulting the parties, but it must have done so in light of the submissions and disputes raised before it at the previous hearing.  I note that the particular wording adopted by the BAT, relevant to the Site Inspection Direction, is that the BAT said it was “minded to have a joint site inspection”, and directed the parties to provide “written submission in relation to the arrangement of the joint inspection”.

20.  Subsequently, the Applicant invited the BAT to withhold/suspend the Two Decisions pending the parties’ written submissions to be made on whether they were legally viable, taking into account matters of jurisdiction, fairness and appropriateness.  On 30 January 2023, the BAT directed the parties to provide written submissions in view of the Applicant’s challenge.  Written submissions were provided by the BA and the Applicant on 31 January and 3 February 2023 respectively.

21.  On 9 February 2023, the BA submitted aerial photos of the Applicant’s premises and provided dates and time for the proposed joint site inspection.  On the same day, the Applicant opposed the BA’s submission of aerial photos.

22.  On 10 February 2023, the BAT confirmed the Two Decisions, with reasons provided.  In its reasons, the BAT noted, amongst other things, that:

(1)  the BAT is vested with wide and flexible power to determine the procedure of an appeal, including receiving any relevant evidence;

(2)  the parties have no objection that aerial photos are relevant to the issues in dispute, namely whether there is any UBW mentioned in the building order;

(3)  the aerial photos acquired from Survey and Mapping Office are public records, and any challenges to the BA’s photographs are irrelevant;

(4)  the BAT does not have any stance whether the aerial photos would have any positive or negative impact on any party’s case before parties’ filing of the aerial photos;

(5)  evidence taken during a site inspection would be relevant to the issues in dispute, namely whether there is any UBW and the extent of any UBW;

(6)  taking evidence in the exercise of its powers, the BAT is not engaging in an arbitrary or unlawful interference with privacy or home, or doing anything contrary to law;

(7)  the BAT does not have any stance whether the evidence taken during the site inspection would have any advancing or adverse impact on any party’s case before the joint site inspection;

(8)  a joint site inspection by the BAT together with the parties shall have no impact on the fairness, independence, and impartiality of the BAT.

23.  Nevertheless, on 15 February 2023, and after further reflection, the BAT said either that it had not decided on a site inspection, or that in any event it did not need to carry out the Site Inspection any more.  Therefore, by 15 February 2023, the proposal for a site inspection had gone away.

24.  As already stated above, the BAT has stayed the making of closing submissions in the two appeals, pending the outcome of this application for leave to apply for judicial review.  As a result, the merits of the two appeals are still to be determined by the BAT.  In other words, the BAT is yet to decide – on the merits of the two appeals as it sees them – whether to order confirmation, variation or reversal of the decisions appealed against, or what other orders it might make as it thinks fit.

C.  Intended Grounds of Review

25.  In the AF 86, the Applicant has set out in some detail its grounds of appeal before the BAT, but I do not think I need to rehearse them for present purposes.  Indeed, I am not concerned with the actual merits of the underlying appeals.

26.  Instead, I can refer to the Applicant’s intended grounds of judicial review, the headings of which and the broad points made are as follows.  The first three grounds relate to the Site Inspection Direction, and the other three grounds relate to the Aerial Photos Direction (where references to section numbers are to the numbered sections of the BO):

(1)  Ground 1: Illegality (section 53 inspection power not engaged at a section 49 preliminary hearing).

The broad point made is that a “preliminary hearing” engages a threshold test to screen out plain and obvious hopeless cases at an early stage, so that there is a distinction between a “preliminary hearing” and a “full hearing”, only the latter of which might engage the section 53 powers.

(2)  Ground 2: Constitutional challenge.

The broad point made is that the wide and unlimited power under section 53 must be subject to the scrutiny of the court against the constitutional rights under articles 6, 8, 11, 29, 38 and 39 of the Basic Law (“BL”), article 14 of the Bill of Rights Ordinance (“BORO”), and article 17 of the ICCPR.

(3)  Ground 3: Illegality (breach of article 10 of BORO, fairness, partiality, predetermination, apparent bias, unreasonable).

The broad point made is that the BAT’s decision to take evidence at the Site Inspection was “clearly a course of action to assist the BA to the disadvantage of the Applicant”, and was accordingly unfair and in breach of the requirement of impartiality, biased, and predetermined.

(4)  Ground 4: Procedural Illegality (at a section 49 preliminary hearing)

The broad point made is that the BAT should determine the issue of good cause at a preliminary hearing on the materials placed before it by the parties, without the Aerial Photos.  Reliance is placed upon what was said by the Court of Appeal in Longest Profit (Hong Kong)  Ltd v Appeal Tribunal (Buildings) [2014] HKCU 255 at §25, namely that whilst it is correct that preliminary hearings are to weed out unmeritorious appeals, whether an appeal has merit must be determined by reference to the materials placed before the BAT by the parties.

(5)  Ground 5: The Aerial Photos decision is unfair (section 51(c))

The broad point made is that, by reason of the circumstances raised in Ground 3, the BAT’s decision to acquire Aerial Photos was clearly a course of action to assist the BA and disadvantage the Applicant, and was accordingly unfair, not impartial, biased, and predetermined.

(6)  Ground 6: Excess of Jurisdiction

The broad point made is that the BAT’s power to “receive” evidence connotes passivity on its part and the structure of the Building (Appeal)  Regulation Cap 123L indicates that the evidence to be adduced is in the hands of the parties to the appeal, rather than the BAT.

27.  Each of these points was more fully made in writing, and then more succinctly addressed orally at the hearing, by Mr Philip Dykes SC (leading Mr Tim Kwok and Ms Nicole Chun).  I note that Mr Kwok was/is the Applicant’s Counsel in the Building Appeals hearings.

28.  Mr Dykes identified the three main issues in the application as being:

(1)  Can a BAT use its powers under section 50(1)(b)  of the BO to direct that evidence be gathered for its benefit (sui moto), or must it rely on the evidence presented by the parties to the appeal?

(2)  Can a BAT direct that it will enter and inspect premises under section 53(1)  of the BO when holding a preliminary hearing of an appeal under section 49 into whether “good cause” has been shown to hold a full appeal hearing under section 50(2)?

(3)  In any event, is the power of inspection under section 53(1)  of the PO compatible with article 29 BL guaranteeing freedom from arbitrary or unlawful intrusion into the home?

29.  Mr Dykes submitted orally that the various arguments are all reasonably arguable, the case is not an abuse, if grounds are made out then relief would be properly granted, and any question as to what should be the relief would be a matter for a substantive hearing.

30.  Mr Dykes also sought to emphasise that the Two Decisions are material, and that the points raised by them may possibly be resurrected either in the Building Appeals or in other appeals.  As he also put it, both issues triggered by the Two Decisions are always potentially alive, those issues have occurred early on in the Buildings Appeals, and so intervention at this point would meet the “rubric” for doing so, not least because if the questions raised go to the root of the extent of powers it is better that there be clarification of that at the start.  There is, therefore, utility in the application for the Court to seize the issue now and (as he submitted)  to put the BAT back on the right track.

D.  BA’s Opposition

31.  In summary, the BA’s opposition to the grant of leave to apply for judicial review is that:

(1)  The Aerial Photos Direction is only intermediate and procedural in nature.

(2)  The Site Inspection Direction was either never made, or has been rescinded.

(3)  Therefore, the application for leave to apply for judicial review as a whole serves no purpose, is premature, academic, hypothetical and lacks utility.

(4)  Even if the Site Inspection Direction is to be considered, it has no effect (legal or otherwise, direct or indirect)  to the Applicant.  No fundamental rights that are said to have been breached were even engaged.

(5)  The question which the BAT has to decide is whether there is “good cause” to hold a full hearing, the answer to which depends on all relevant circumstances and where there is no statutory restriction or guidance as to how that question has to be answered.

(6)  To suggest that the power to “receive” evidence connotes passivity on the part of the BAT is inconsistent with a purposive reading of the relevant section.

32.  These points were developed in a skeleton argument and addressed orally by Mr Ernest Ng (appearing with Mr Gabriel Cheung, Government Counsel).  Mr Ng also adopted the BA’s initial response previously filed.  I note that Mr Ng was/is the BA’s Counsel in the Building Appeals.

E.  Merits of Intended Challenge to Aerial Photos Direction

33.  This primarily concerns intended Grounds 4, 5 and 6.

34.  I shall deal first with the preliminary points on the arguments as to academic, utility and prematurity.

35.  Mr Ng says that the intended challenged to the Aerial Photos Direction has become academic.  The aerial photos were provided by the BA to BAT when the relevant direction was neither stayed nor varied and the aerial photos were already viewed by the BAT on a de bene esse basis at the hearing on 15 February 2023.  I do not agree with that submission.  Implicit in the viewing of the photos on a de bene esse basis is a recognition that the BAT, sitting as a professional adjudicator, will be able to exclude the photos from its consideration of the evidence if it needed to in the future.

36.  However, I do see an overall futility argument in the challenge to the Aerial Photos Direction.  Quashing the Aerial Photos Direction could not stop the Applicant from producing the aerial photos on its own initiative as the part-heard preliminary hearing continues before the BAT, now that it would have known that the BAT considers such evidence relevant and potentially helpful.  The Applicant does not, and cannot, seek as part of the relief a mandamus prohibiting the BA from doing so.

37.  This also reflects the artificiality of the challenge to the Aerial Photos Direction.  Even in the usual adversarial setting of a civil action heard before a court, it is not uncommon that a party may propose to adduce additional evidence if the judge indicates (as opposed to directing)  that such evidence might be helpful.  Had the aerial photos (and site inspection)  been mentioned in the preliminary hearing before it was adjourned, it was likely that the BA would have taken the initiative to produce such evidence.  It also seems to me to be obvious that – not least where issue seems to have been taken to the presence or location of the UBWs – for the BAT to have wondered and asked whether there might be independent or objective evidence, perhaps in the form of aerial photos.

38.  Further, ordinarily, the Court will not entertain an application for judicial review of a decision that is intermediate or procedural in nature, nor gives rise to any substantive consequence, nor is a decision of decisive nature.  The Court’s judicial review jurisdiction is of a supervisory nature, and is not meant for the purpose of micro-managing the activities of subordinate tribunals or administrative decision-makers: see, for example, Financial Secretary v Wong (2003)  6 HKCFAR 476 at §14; Wong Ho Ching v Appeal Tribunal (Buildings Ordinance) (unreported, HCAL 1529/2020, 2 November 2020)  at §58.

39.  The essential quality of a reviewable decision is that it is a substantive determination, rather than a procedural matter not resolving a substantive issue and lacking the quality of finality.  Part of the rationale is recognised as being that it often happens that the effect of even questionable decisions made at an intermediate stage of the process is dissipated or overtaken by subsequent developments, so that they turn out to have little or no impact by the time the final stage is reached.

40.  Of course, the general rule is not inflexible, and there may be exceptions calling for special treatment.  But, in this case, I do not think there are any exceptional circumstances to justify potential intervention by way of a judicial review.  Indeed, as submitted by Mr Ng, there is similarity in this case with the points made in the Wong Ho Ching case at §60, where Chow J (as Chow JA then was)  said:

In the present case, the Decisions sought to be challenged by the Applicants are all procedural or intermediate in nature.  The Tribunal has not yet decided whether good cause has been shown for holding a full hearing of the Appeal, still less whether the Appeal should be allowed or dismissed.  The Decisions do not give rise to any substantive consequence.  In the event that the Tribunal should ultimately dismiss the Appeal, it would still be open to the Applicants to challenge the final decision of the Tribunal by way of judicial review on grounds which may include the complaints raised in the present application (assuming that they have merits).

41.  In the present case, if the photos turn out to be capable of supporting the Applicant’s assertions about the UBWs’ existence or their location, presumably a full hearing will be conducted and no complaints will arise from the Aerial Photos Direction.  On the other hand, if the photos turn out to support the BA’s version instead and the appeal is dismissed at the preliminary stage, it will be open for the Applicant to the challenge that dismissal and the Aerial Photos Direction could become a ground of challenge.  Either way, the Applicant will not be prejudiced.

42.  In any event, where the BAT has itself stressed that it has no predetermined view as to the assistance which might be obtained by the parties, one way or the other, from the Aerial Photos, the assertion that the Aerial Photos Direction is unfair is untenable.  In my view, the BAT’s seeking to obtain evidential materials which will assist it in deciding the issues in dispute cannot conceivably be described as showing an appearance of bias or lack of impartiality.

43.  Indeed, it might be thought that the very suggestion that obtaining the Aerial Photos will be an advantage to the BA and a disadvantage to the Applicant is an implicit recognition on the part of the Applicant that it fears the content of the Aerial Photos and wishes to exclude them because of any potential adverse effect.  An order to produce relevant material is not somehow rendered unfair – nor does it identify any bias or lack of impartiality or predetermination – because one of the parties fears that the relevant material might prejudice its own position in the case.

44.  It seems to me that somehow the Applicant sees the appeal before the BAT as an accusatorial process in which the BA is under a duty to adduce sufficient evidence to prove its case against the Applicant. The Applicant says that the Aerial Photos Direction (and the Site Inspection Direction)  reflects that the BAT must have taken the view that the current evidence produced by the BA is insufficient and thus the two directions were an attempt to fill in the evidential gap for the BA.

45.  This is misconceived, as well as being an unfair suggestion.  The Applicant is the appellant, not the respondent, before the BAT.  The section 49 proceeding is to determine if the appeal should be weeded out at an early stage or should it be allowed to go ahead to a full hearing. It is not a process to see if the BA can produce sufficient evidence to justify the issuance of the building orders in the first place.

46.  Alternatively, it appears to me that somehow the Applicant may see the section 49 proceeding as a striking out application against its appeal.  The Applicant says that it has raised a factual dispute – namely the existence or location of the UBWs – and that on its own is sufficient to justify a full hearing.  But the preliminary hearing is not a striking out and the BAT is not bound to take the factual assertions of the Applicant at its highest.  Indeed, if an appellant can proceed to the full hearing stage simply by raising contrary factual assertions but without producing evidence in support, that would render the section 49 proceeding otiose.  This cannot be right.

47.  For the reasons above, it is not necessary for this Court to engage in a discussion of the other merits of Grounds 4, 5 and 6.  But even if I am minded to, I see no merit.

48.  Indeed, I also think the Applicant’s submission based on what was said in the Longest Profit case at §25 – namely that whilst it is correct that preliminary hearings are to weed out unmeritorious appeals, whether an appeal has merit must be determined by reference to the materials placed before the BAT by the parties – misreads that paragraph, or takes it out of context (not least in ignoring the immediately following words within §25).  The Court of Appeal was not stating that the BAT has some passive role as regards obtaining relevant materials for its decision.  Rather, it was merely identifying that the merits of an appeal are to be determined by reference to the materials in that appeal.  It did so in the particular context of that case where the points were made that:

(1)  where section 49 gives the power to the BAT to dismiss an appeal at a preliminary hearing when no good cause has been shown for holding a full hearing, the burden must rest squarely on an appellant to show to the BAT that there is good cause for holding a full hearing (§11);

(2)  an appellant does not discharge the evidential burden by making unsubstantiated assertions (§22);

(3)  the appellant in that case had decided not to put its cards on the table and had done very little in terms of the preparation of evidence for its appeal before the preliminary hearing (§24); and

(4)  if an appellant simply chooses to rely on bold assertions unsupported by concrete evidence, he should not be surprised to find that the BAT rejects his appeal on the ground that no good cause has been shown for holding a full hearing (§25).

49.  Further, section 50 of the BO provides that:

(1)  The following shall apply in relation to the hearing and determination of an appeal or a preliminary hearing held under section 49 –

(a)  every question shall be determined by the opinion of the majority of the members of the Appeal Tribunal;

(b)  where there is an equality of votes, the Chairman shall have a casting vote;

(c)  the Appeal Tribunal may –

(i)  receive and consider any oral, documentary or other evidence, (including any written statement), whether on oath, affirmation or otherwise, and whether or not it would be admissible in evidence in proceedings in a court;

(ii)  by summons issued in the prescribed manner, require any person to attend before it at any hearing to give evidence or to produce any document;

(iii)  administer oaths or affirmations;

(iv)  examine on oath, affirmation or otherwise any person attending before it and require such person to answer any question put by or with the consent of the Tribunal.

(2)  In determining an appeal, the Appeal Tribunal may make an order confirming, varying or reversing the decision that is appealed against or substituting therefore such other decision or make such other order as it thinks fit.

50.  Therefore, section 50 expressly empowers the BAT – in relation to the determination of either an appeal or a preliminary hearing – to receive and consider any oral, documentary or other evidence, (including any written statement), whether on oath, affirmation or otherwise, and whether or not it would be admissible in evidence in proceedings in a court.  The Applicant’s suggestion that the BAT has a “passive power”, and can only consider evidence placed before it by the parties, makes little sense in the context of a tribunal hearing, and is contrary to the clear sense of the wider provisions in section 50.

51.  The other strand to the Applicant’s argument relies on the word “receive”.  It is said that the word “receive” connotes passivity such that the BAT cannot on its own motion ask for evidence.  But I agree with Mr Ng that the ordinary meaning of this word does not entail such extreme passivity.

52.  Mr Dykes refers to section 254(1)  of the Securities and Futures Ordinance Cap 571, but the more comparable provision is section 253(1)  which provides (my emphasis):

Subject to the provisions of Schedule 9 and any rules made by the Chief Justice under section 269, the Tribunal, for the purposes of any proceedings instituted under section 252, may, on its own motion or on the application of any party before it-

(a)  receive and consider any material by way of oral evidence, written statement or documents, even if the material would not be admissible in evidence in civil or criminal proceedings in a court of law; …

53.  Section 253(1)  shows that the word “receive”, without more, is neutral and is capable of referring to the production of evidence either initiated by the party or by the tribunal.

54.  Mr Dykes also refers to section 8 of the Building (Appeal)  Regulation Cap 123L, which provides:

The Tribunal may, on application made in that regard by a party to an appeal, issue a summons signed by the Chairman, requiring a person to appear before the Tribunal at the hearing and give evidence or produce any document in his custody, control or possession.

55.  I cannot see how that section 8 can assist the argument that the word “receive” connotes passivity.  On the contrary, the express reference to “on application made in that regard by party to an appeal” shows that the legislature could expressly say so if it is minded to limit the production of evidence only to be initiated by a party but not on tribunal’s own motion.  But, it seems to me that the section is really to enable a party to obtain evidential material which is not otherwise available to it from having it in its own custody, control or possession.

56.  Further, any suggestion (if made)  that the power in section 50 is somehow restricted to “full appeals” is contrary to the express wording of the section.  This is also because, for example, a decision that an appellant has not shown good cause why there should be a full appeal is clearly the determination of that appeal.

57.  The intended Ground 4, Ground 5 and Ground 6 are not reasonably arguable with any reasonable prospect of success.

F.  Merits of Intended Challenge to Site Inspection Direction

58.  This concerns intended Grounds 1, 2 and 3.

59.  The starting point is that there is no extant Site Inspection Direction.  On the day following the issue of these proceedings, the BAT clarified or confirmed that it has not in fact decided on such a direction (but merely proposed it as possible)  and/or it was no longer proposing that there should be a site inspection.  No such Site Inspection is intended to occur.

60.  Mr Ng emphasised that at the preliminary hearing stage, there is now no question of there being any site inspection, and that what might possibly occur at a full hearing is full of ‘what ifs’ or requires levels of assumptions or hypotheses – hence, the lack of utility by reference to speculative future possibilities.

61.  Therefore, the proposed challenge is either academic or hypothetical, and I see no reason to continue to address it in these proceedings.  I agree with Mr Ng that the alleged fundamental rights supposed to have been breached have simply not been engaged.  In the exercise of my discretion, I am not persuaded that the application for leave to apply for judicial review in relation to the Site Inspection Direction should proceed for the reasons offered by the Applicant, namely that (1) it relates to infringement of an important private right; (2) the impugned powers can be used in future by the BAT should it ever find “good cause” and move on to section 50 hearing; and (3) the point is one of general public importance because the power may be used in other cases.  Rather, it seems to me that if there is to be an examination of the legality of the powers granted to the BAT, that should occur in a case where the BAT is maintaining that it has and will actually exercise such powers.  This is not that case.

62.  Though of perhaps less importance in light of my findings above, I also agree with Mr Ng that the intended challenge to the Site Inspection Direction has become academic.  I do not think that the intended challenge in this case is one which should be entertained by the Court in line with the principles set out in Chit Fai Motors Co Ltd v Commissioner for Transport [2004] 1 HKC 465 at §20.  Reference can be made to §21, and to the fact that the case arose in factual circumstances very different from those here.

63.  Reference can also be made to the case of R (Leticia McKenzie)  v London Borough of Waltham Forest [2009] EWHC 1097 (Admin)  – cited by Mr Ng – where, at §§24-27, emphasis was put on the caution to be exercised in public law cases where the dispute is academic between the parties.  Such cases should not be heard unless there is good reason in the public interest in doing so as for example where a discreet point of statutory construction which does not involve detailed consideration of the facts and where a large number of similar cases exist or anticipated so that the issue will most likely need to be resolved in the near future.  Hence, it was held that a claimant must establish to conditions as satisfied, being (1) that a large number of similar cases exist or are anticipated and (2) the claim involves the resolution of a discrete issue which does not require detailed consideration of the facts.

64.  I agree with Mr Ng that there is no reason or incentive to hear any complaint about the Site Inspection Direction.

65.  In passing only, I would also express my view that where a statute provides for entering and inspecting land or premises for building safety purposes, it does not seem to me to be fertile ground for a constitutional challenge based on intrusion to rights of property and privacy. Similarly, where the purpose of entering and inspecting is for the determination of an appeal and the steps taken must be at any reasonable time, that cannot arguably be described as arbitrary.  Further, merely asserting that certain words of the section might be described as “vague” (if the context is ignored)  does not create legal uncertainty or the absence of prescription by law.  Indeed, the phrases alleged to be vague – such as “at any reasonable time”, “as it considers relevant” and “as it considers necessary” – are typical of words used to describe powers given to courts and tribunals.  Yet further, to say that wide powers can be abused adds nothing to the strength of the argument.

66.  The Applicant’s constitutional challenge has two strands.  The first strand says that the site inspection power under section 53 of the BO cannot be exercised in a preliminary hearing under section 49 but only for a hearing under section 50. Session 53 provides that the power may be exercised “for the purpose of determining an appeal” and Mr Dykes suggests that amounts to a determination of the full appeal.  I do not agree.  Section 49(2)  expressly provides that an appeal could be dismissed at the preliminary hearing stage.  A dismissal of an appeal following a preliminary hearing is a determination.

67.  The second strand targets the overall process before the BAT.  In the context of this application, I only propose to deal with this argument fairly briefly.  The prevalence of multi-storey buildings in Hong Kong is obvious.  It is difficult to see how building safety in Hong Kong could be enforced if the BA has no powers to enter the building for purposes relevant to building safety.  That would mean the collection of evidence including by taking photos and making inspection would be severely restricted and at times wholly impossible.  It is no argument to say that the BAT need not be equipped with such power when the BA already has it.  The BAT is independent from the BA.  Nor does the Applicant establish any reasonable argument by asserting that it is for the BA to present its case to the BAT that UBWs exist as a fact, which it must prove if challenged, so that the BAT ought not be given wide powers of entry. The extent of the powers granted to the BAT are not influenced by, and certainly not determined by, which party might be said to bear any burden of proof on any topic.

68.  Further, for similar reasons as applies to the analysis of the intended challenge to the Aerial Photos Direction, there is no arguable unfairness, bias, lack of impartiality or predetermination in the proposed site inspection or the Site Inspection Direction.

G.  Result

69.  The application for leave to apply for judicial review is dismissed.

70.  The temporary stay applicable to the two appeals before the BAT is lifted with immediate effect.

71.  I see no reason why costs should not follow the event.  Although this application was (as is usual)  made on an ex parte basis, it was entirely appropriate for the matter to be canvassed with the participation and assistance on behalf of the BA – not least, where interim orders impacting the underlying ongoing appeal proceedings were being sought.  Further, I have indeed been assisted by that participation.

72.  Therefore, the Applicant shall pay the costs of the BA, to be taxed if not agreed.

H.  Postscript

73.  I have already alluded to the potential view that these proceedings have been generated as a result of the Applicant’s apparent concern that if object information is available to the BAT about the alleged UBWs and their alleged location, that would be disadvantageous or prejudicial to the Applicant.  It might have been thought that if the Applicant’s case that the UBWs are not on any part of the building owned by it, or for which it bears responsibility, it would have been the Applicant that would have pushed for independent materials verifying that fact – perhaps in the form of photographs or by an invitation to the BAT to come and see for itself.

74.  Indeed – though I would make clear that I have not taken account of this possible point in my above decision – the Applicant’s resort to where the burden of proof lies might not help it.  Where the BA has produced some photographic evidence of UBWs, and the Applicant says that there are no such UBWs on the portion of roof for which it is responsible, it might be thought that the burden lies on the Applicant to show that there are no UBWs on its roof.  Of course, not least when it can consider evidence which would not be admissible in a court, most questions dealt with by the BAT will not turn on who bears the burden of proof, and the powers given to the BAT expressly identify that it is intended to have a large measure of discretion in deciding the questions arising in an appeal.

75.  In any event, it will now fall to the BAT to make its determination on the merits of the appeals as it sees them on the materials which it has or will have received.  I would make clear that nothing which I have canvassed in this Decision is intended in any way to influence the determination of the BAT in the appeals.