HKSAR v. YAM WING HAN AGNES

HCMA 1138/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1138 OF 2000

(ON APPEAL FROM SPS 900013/2000)

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J U D G M E N T

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1. An information was laid against the Appellant for contravening section 40(1B)(b) of the Buildings Ordinance, Cap. 123 by failing to comply with an order served on her under section 24(1) of the same Ordinance.

2. The particulars of the information were as follows:

"That you, being the building owner between 28 January 1999 and 3 June 1999 at Flat 1022, 10/F, Bell House, 525-543A Nathan Road, Kowloon did without reasonable excuse fail to comply with an order C CW0881/93/K of the Building Authority served under section 24(1) of the Buildings Ordinance, Cap. 123, on you on 12/07/1993 requiring the carrying out of the works namely to demolish and remove the unauthorised building works and to reinstate the affected part(s) of the building in accordance with the plans approved by the Building Authority."

3. The Appellant appeared in person and pleaded not guilty in the Magistracy, but was convicted after trial on 21 July 2000. She applied for a review of that conviction but the Magistrate, having heard submissions, confirmed the original decision.

4. The Appellant was fined $5,000.00 for the original offence and $6,350.00 for continuing that offence. It is against that conviction she appeals.

The facts

5. Various matters were either admitted or undisputed by the Appellant and overall the facts were as follows. The building, Bell House, was inspected on 27 January 1993 by a Senior Survey Officer. He found an illegal structure annexed to Flat 1022 on the 10th floor, the Appellant's premises. This structure projected beyond the external wall of the building. The Appellant at all material times was the registered owner of that flat.

6. On 12 July 1993, the Building Authority issued an order pursuant to section 24(1) of the Buildings Ordinance (BO) to the Appellant requiring her as owner of Flat 1022:

(a) to remove the illegal structure; and

(b) to restore the part of the building affected in accordance with the approved plans.

7. The Order specified periods of compliance, namely, 30 days to commence and 60 days to complete the required works.

8. Inspections made on 22 September and 20 October 1993 showed the Order had not been fully complied with as the illegal structure had been only partially removed, the floor slab remained intact and the external wall opening of the premises had not been blocked up. At a further inspection on 2 May 1995, the floor slab was found to have been removed, but the external wall opening had not been blocked up. Inspection on 28 January 1999 showed that the external wall remained open and not blocked up.

9. The Building Authority issued a letter on 1 March 1999, giving Appellant a further 4 weeks to comply and warning her that she might be prosecuted for non-compliance. A reminder letter was issued on 30 March 1999, but an inspection on 3 June 1999 showed the structure was as last inspected. On 27 January 2000, this information was laid against the Appellant.

Evidence

10. At trial, the prosecution case rested on the facts admitted by the Appellant and prosecution witnesses produced the relevant reports and photographs taken on the relevant dates, of the premises and the structure.

11. The Appellant did not challenge the facts at the trial. She admitted being the registered owner and having received the Order. She said that the structure was there when she bought the premises. She gave evidence that she and other owners had pooled their money to demolish respective illegal structures as well as maintain and renovate the building. She contributed $40,000.00 for this purpose and believed that it was the responsibility of the group to reinstate the external wall of the premises because she had paid fully what she was required to as an owner. Her view was that the external wall belonged to the Owners Incorporated (OI) since it fell within the meaning of 'common parts of the building' under the BMO. The Appellant admitted that she had not complied with the Order and that she had sole and exclusive enjoyment of the premises.

12. Under cross-examination, she admitted that the structure was part of the premises of which she was the owner. When it was put to her that the OI was not responsible for the reinstatement because there was a breach of the Deed of Mutual Covenant (DMC), the Appellant said she did not know about that.

13. The Magistrate heard submissions from both parties. She considered that there were three substantial obligations comprised in the Order. The first was the obligation to do the works. The second was to begin the work within the time and the third obligation was to complete within the time specified. Breach of any one of those requirements constituted non-compliance.

14. The Appellant submitted that the external wall of the premises formed part of the common area, although the Magistrate found her case in this respect was contradicted by the DMC. The Magistrate considered whether the structure fell within the meaning of "building works" under the BO and if so, whether the Order was served rightly on the Defendant under section 24(2). Having examined section 2(1) of the BO which defines "owner" and "building works", the Magistrate found that the structure fell within the definition of building works under the BO, that the Appellant was the owner of the premises and the Order had been rightly served on her.

15. As to reinstatement, the Magistrate considered whether the Appellant had fulfilled her obligations, in particular, whether or not the wall had been blocked up as required. She concluded that the wall should be blocked up to a height of at least 1.1 metre to accord with the plan approved by the Building Authority, as stipulated in the Order. The Appellant's own case was that the wall at the material time was one or two feet lower and thus did not comply with the order.

16. The Magistrate rejected the Appellant's argument that as she was not the owner of the external wall she had no obligation to reinstate it. Having found the Order had not been complied with, the Magistrate examined the possible defences available to the Appellant, whether or not she was able to establish reasonable excuse under section 40(1B)(b), or else a defence under section 40(7) of the BO, which applies where there is more than one owner of a building.

17. The Appellant said that she paid the OI to demolish the illegal structure, but the Magistrate found that whether or not she paid the OI or other independent contractor to carry out the works did not alter her obligation to comply with the order. Even if the Appellant had paid the OI to carry out the works and the OI had failed to do so, that was not a reasonable excuse for the Appellant's failure to comply.

18. The Magistrate found the defence under section 40(7) was not applicable because the Appellant was the sole owner of the premises. However even if there was more than one owner, the Appellant had failed to discharge her burden to prove that the 'unblocking' of the wall had been done by the other owner, in this case, the Bell Investment Company Limited. Further, there was no dispute that it was the Appellant rather than any other owner who had been served with the Order.

19. The Magistrate found that the Appellant was the sole owner of the premises and that she had been properly served with the Order. She was satisfied that the obligation under the Order was a continuing one. The Order had not been complied with as there had been no reinstatement in accordance with the plan approved by the Building Authority, which required that the wall should be blocked up to at least 1.1 metre. No reasonable excuse had been established that provided a defence under section 40(1B)(b) of the Buildings Ordinance and the defence under section 40(7) was not applicable. The Magistrate convicted the Appellant.

The Review

20. The Appellant applied for review under section 104 of the Magistrates Ordinance and leave was granted for a hearing on 23 August 2000. As the Appellant was unrepresented the Magistrate adjourned the hearing to 31 July to enable her to prepare final submissions. These were submitted on 31 July 2000.

21. The first ground of review was that the Magistrate had erred in not considering the defence of reasonable excuse, under section 40(1B)(b) of the Buildings Ordinance relied on by the Appellant. The second was that the alleged offence was continuous and related to the same matter and the failure of the Building Authority to take action over a period of 6 to 7 years constituted a "connivance in law"; accordingly the summons had been issued out of time and was contrary to the principles of natural justice.

22. Appellant submitted that Section 24 of the BO had no express provision empowering the Building Authority to order the reinstatement of the common parts of a building, or the blocking of an external wall opening owned by an individual owner and injustice had been done as the Appellant had only been served with the bundle of documents after the trial commenced, and had had insufficient time to seek legal advice on her defence.

23. A further ground of the Review was that the Building Authority failed to commence action within the time limit under section 40(8) of the Building Ordinance.

24. The two questions that arose on review were whether section 40 of the Buildings Ordinance created a continuing offence and whether or not the Magistrate was entitled to hear and determine the summons. The Magistrate, having heard submissions and having exhaustively canvassed various authorities, concluded that offences under section 40(1B)(b) and (8) of the Building Ordinance are continuing offences, which may be the subject of prosecution unless and until the time comes when the works required to be done by the order served under section 24 are properly completed. On that basis, she was entitled to hear and determine the summons, accordingly; the application for review was refused.

The Appeal

25. The Appellant filed extensive grounds of appeal arguing again that the obligation to execute works specified in the demolition order is not a continuous obligation and has not been made a continuous obligation by the Building Ordinance. She submitted that the Magistrate erred in law in holding this was a continuing offence and in particular erred in holding that a demolition order specifying a period of 60 days for compliance in 1993 could begin running again in 1999/2000. In the absence of an express provision in the Ordinance to this effect, according to her, the order had been cancelled by the Building Authority before the time of hearing the summons.

26. The Appellant submitted that the Magistrate was wrong in holding that the demolition order was not defective, when she had given several reasonable excuses in her defence.

27. Appellant complained that the Magistrate had not fully considered the issue of law as to the liability between the Appellant and the incorporated owners of Bell House, nor the probability that the external wall opening might have been left unblocked due to negligence, or otherwise, by the contractors who were carrying out the demolition, removal and reinstatement works required to be done.

28. The Appellant complained about the quality of the photographs used at the trial and the quality of the building floor plan exhibited. She submitted that the Magistrate had "shunned" or disregarded issues of law and fact raised by the Appellant in her evidence and written statements despite the fact that such were soundly based and/or corroborated. Appellant contended there had not been a fair trial or a fair review hearing, contrary to clause 10, Bill of Rights Ordinance.

29. Immediately prior to the appeal hearing the Appellant filed supplementary grounds of appeal with the Court. These repeated, in slightly different form, the grounds that had already been set out in the grounds of appeal.

30. There were fresh allegations that the Magistrate had not been impartial in dealing with the matter, although an examination of the points on which the Magistrate was regarded as partial, appeared to be matters where the Magistrate had found against the Appellant. As for the suggestion that the Magistrate was prejudiced in dealing with the matter, the Appellant appeared to consider prejudice arose merely because the Magistrate had not accepted her arguments.

31. It was submitted that the Magistrate erred in law in treating the summons as alleging a continuing offence; that Bill of Rights' issues arose; that the case had not been conducted fairly and partially; that the Order had not given details of the work to be done; that the summons was a rubber stamp; that the Appellant did not have a place at which she could unfold her documents during the hearing and that the review hearing in the Court below lasted for about 10 minutes only.

Appeal

32. At the appeal, the Appellant put in a written reply to the Respondent's written submissions filed with the Court. This, in shorter form, reiterated the original and supplemental grounds of appeal.

33. The Appellant appeared in person and stated her points as being those in the written documents put before the Court. She added that there was no legal basis on which to lay the charge and that the information was a "frame-up". By this the Appellant said she meant that the Magistrate, having heard her objections to the trial continuing, had stated that she had jurisdiction and continued with the trial.

34. The appeal decision was reserved to enable the court to consider further the voluminous written submissions of the Appellant. During the period when this judgment was being considered the Appellant filed a letter, dated 28-12-00, which amounted to a short submission explaining what she had meant when she referred at the appeal to having been "framed up" or wrongly prosecuted. She asked that the clarification be considered as part of her submission and I did so, despite it being out of time.

35. Appellant claimed to have been wrongly prosecuted first because there were no legal grounds for her prosecution as the BO did not provide for a continuous obligation and secondly that the alleged offence revolved around an "expired, invalid, defective, erroneous and cancelled" Order. Thus it appears that Appellant was merely repeating, albeit in a slightly different format, matters that had been considered by the Magistrate and that had been put forward on the appeal.

36. The Appellant's next point was that the original demolition order had expired and so was invalid and had been cancelled. In particular as the demolition order did not specify the wall had to be erected to a height of 1.1 metres, the Magistrate had not complied with sections 19(2) and 114(b) of the Magistrate's Ordinance, Cap. 227.

37. Section 19(2) states that Magistrate, having heard what each party has to say and the witnesses and evidence so adduced, shall consider the whole matter and determine the same, and shall convict or make an order against the defendant or dismiss the complaint or information, as the case may be.

38. Section 114(b) states that when a notice of appeal has been given to the magistrates' clerk, the magistrate whose conviction, order or determination is the subject of the notice of appeal shall prepare a signed statement of his findings on the facts and other grounds of his decision within 15 days after the day on which the Notice of Appeal was given and cause a copy to be served upon the appellant and respondent and if he is not the respondent, also upon Secretary for Justice.

39. Linked with this complaint that the Magistrate had not complied with those sections was the complaint that the Magistrate did not take into account the large number of facts and legal arguments put forward by the Appellant and that this was "contrary to the principles used in Court", apparently a complaint that the rules of natural justice were not followed.

40. I note the Magistrate's careful attention to this matter both at trial and review. She complied fully with section 19(2) and section 114(b). The Appellant's complaint that the Magistrate had no jurisdiction to hear the matter was not justified. The Magistrate had dealt with the question of jurisdiction both at trial and on review; she dealt with it correctly and was entitled to proceed with the case.

41. The Appellant submitted that the Magistrate hearing the case was biased in favour of the other side, contrary to Article 10 of the Bill of Rights Ordinance. Having looked at all the matters raised before the Magistrate and having considered the way the Magistrate dealt with them in her Statement of Findings and in the written ruling that she made on the review, I am satisfied the Magistrate cannot be said to have shown any bias in this case. It does appear that the Appellant's view of bias is that any decision made against her is indicative of bias.

42. I am satisfied that there was evidence to support Appellant's conviction and am satisfied that the Magistrate recognised the issues and dealt fairly and properly with this Appellant at trial and on review.

43. This appeal has no merit and is dismissed.