RE YICK FUNG GARMENT FACTORY LTD

1992 M.P. No. 1410

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

-----------------

------------------

------------------------

J U D G M E N T

------------------------

1. The applicant, Yick Fung Garment Factory Limited, is a corporation, but Mr Lam Sai-hang claims to be its "sole proprietor". However, it is maintained that he has had the exclusive control and management of the limited company.

2. This case involves unauthorized structures at the applicant's premises. The Building Authority served a Demolition order for the removal of these unauthorized structures. The applicant was desirous of appealing against the said Demolition Order, but the Building Authority refused to convene a meeting of the Appeal Tribunal on the ground that the applicant's notice of appeal was out of time. The relief sought is for an Order of Certiorari to quash the Building Authority's decision not to convene an Appeal Tribunal and an order of Mandamus directing the Building Authority to do so for the purpose of entertaining the appeal. The ground on which the relief is sought is that that Building Authority wrongly computed the time prescribed for appeal from 10th (or 11th) October instead of 16th (or 17th) October.

3. On 10th October, 1991, the Demolition Order in question was posted at the applicant's premises by the Building Authority. The applicant company claims that it received a copy of this Demolition Order by post only on 16th October, 1991. Mr Lam Sai-hang was at the material time in Canada. He was informed of the receipt of the mailed copy Demolition order in a long distance call on 16th October. Counsel has no instructions as to whether or not Mr Lam had prior knowledge of the posting of the Demolition Order at the applicant's premises on 10th October, 1991. No issue is taken on the posting of the Demolition Order, which is, on the evidence, conclusive.

4. When the matter first came before me, emphasis was placed on the actual receipt of the mailed copy Demolition Order as opposed to the date it bore. Counting from 11th October, the statutory 3 weeks prescribed for appealing against a Demolition order would expire by the time the applicant sought to appeal but not when time was to run from 17th October. At the previous hearing before me, no mention was made of the posting of the Demolition order on 10th October, 1991; nor was s.35 of the Buildings Ordinance with regard to service of notices and orders thereunder drawn to my attention.

5. However, a cryptic passage in an exhibit contains a passing reference to posting. It reads :-

"We (The consultants) were told that the appeal should be made within 3 weeks from the time of the 'date of decision of the Building Authority', of which you explained that the date should be counted from the time of which the order posted on the premises, i.e. 10th October, 1991, while the formal letter was received by registered mail on 16th October, 1991."

6. On these two competing dates, the date of the Demolition Order and the date on which its mailed copy reached the applicant, leave was granted. The potential arguability of the applicant's case, as it was then presented, rested on the disparity between the date of the Demolition Order and the date of its actual receipt. Having granted leave, with a view to facilitating matters in what then would appear to be a wholly justifiable complaint, notes of proceedings were ordered to be sent to the Building Authority as well as the Attorney General in the hope that grievance could be eliminated without further ado.

7. But the crux of this case truly lies in service of the said Demolition Order by posting pursuant to s.35 of the Buildings Ordinance. There was thus material non-disclosure. On that ground, leave was set aside. The applicant renews its attempt today.

8. It has been held that leave for judicial review falls to be decided by the presence or absence of any "point suitable for further investigation on a full inter partes basis with all such evidence as is necessary on the facts and all such argument as is necessary on the law". See R. v. Secretary of States for the Home Department, Ex parte Angur Begum & Others, The Times, 3rd April, 1989, per Lord Donaldson M.R. Lord Diplock had previously advised that "If, on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting ... the relief claimed ... it ought ... to give (the applicant) leave to apply ... I.R.C. v. National Federation of Self Employed and Small Business Ltd., (1981) 2 AER 93 at p.106 F.

9. Leave granted, except for fraud and material non-disclosure, should not be readily disturbed unless justified by "themost exceptional circumstances". See R. v. District Auditor Chelmsford, Ex parte Judge, The Times, 26th December, 1988. And the power of the court to set aside ex parte leave should be exercised very sparingly and should be invoked only in very plain cases. See R. v. Secretary of States for the Home Department, Ex parte Chinoy, The Times, 16th April, 91.

10. That whether leave should be granted on potential arguability or actual arguability seems to be much debated. See the article entitled "What is Happening to Applications for Judicial Review?" by Maurice Sunkin, a Senior Lecturer of South Bank Polytechnic, (1987) 50 Modern Law Review, p.432 at p.451 et seq. I am prepared to accept Mr Tong's submission that this application should be decided on potential arguability. However, the real issues should have been addressed with care and reasonable precision so as to put the ex parte judge on notice. In this case, there was a shortfall in this respect.

11. In the renewed application of the applicant, Mr Tong relies on the case of Hewitt v. Leicester Corporation, [1969] 1 WLR 855 where s.169(1) of the Housing Act 1957 allowed service of notices, orders and documents required to be served under that Act by delivering it to the person on whom it was to be served, or by sending it to his usual or last known place of abode. (Emphasis supplied). Service was attempted to be effected by mailing the notice to the last known address of the person affected, who had in fact vacated the premises. By s.26 of the Interpretation Act, 1889, service by a pre-paid registered letter was "deemed ... unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post". The English Court of Appeal concluded that the notice so posted ought not be deemed to have been served when in reality it could not have been received.

Section 35 of our Buildings Ordinance reads :-

"Any notice, order or certificate required to be served under this Ordinance may be served by serving a copy :-

(a) personally; or

(b) by registered post addressed to the last known place of business or residence of the person to be served; or

(c) by leaving the same with an adult occupier of the premises or land to which the notice or order relates or by posting the same upon a conspicuous part of such premises or land."

Service of the Demolition Order in this case was by posting it at a conspicuous part of the applicant's premises to which the order related. There can be no degree of uncertainty in this mode of service employed by the Building Authority. It is not suggested that the applicant had momentarily ceased, at the material time, to be associated with the premises in question. Nor indeed is it contended that the corporation was unaware of the posting. Counsel has no "clear instructions" as to whether Mr Lam, who was in full control of the applicant corporation, had not himself been briefed of the said posting of the Demolition Order. The language of s.35 is reasonably clear. The mode of service resorted to by the Building Authority cannot be, in the circumstances, questioned. There is, as I have said, no room for uncertainty as would justify any attempt to intervene.

12. In the circumstances, I am of the firm opinion that there exists no matter of potential arguability for leave sought within the narrow ambit by the applicant to be granted. I refuse the application. It is fair to observe that these proceedings are unconcerned with any direct challenge to the grounds upon which the decision to serve the Demolition Order was taken.