PETER AR FU LAM v. APPEAL TRIBUNAL (BUILDINGS)

HCMP 520/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 520 OF 2013

(ON AN INTENDED APPEAL FROM HCAL NO. 176 OF 2012)

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D E C I S I O N

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Hon Cheung JA (giving decision of the Court) :

1.  The applicant applied for leave to commence judicial review against the decision of the Appeal Tribunal (Buildings) (‘the Tribunal’). The application was refused by Poon J.

2.  The applicant now applies for extension of time to appeal against the decision of Poon J.  He explained that he was residing in the USA.  When he returned to Hong Kong he was stricken with illness and hence was unable to lodge the appeal within time.

3.  We will deal with the application on its merits.

History of the matter

4.  The Building Authority had issued a building order (‘the 1^st Building Order’) on 13 May 2010, pursuant to section 24(1) of the Buildings Ordinance, Cap. 123 against the applicant.

5.  The applicant lodged an appeal against the 1^st Building Order to the Tribunal.  The Tribunal in its reasons for decision dated 23 November 2012 set out the history of the matter :

‘ The 1^st Building Order

3. The building works which were said to be unauthorized under the 1^st Building Order were stated as:

“(i) Structure attached to external wall of bedroom facing Block 2.”

4. By the 1^st Building Order, the Appellant was required to remove the said structure and to re-instate in accordance with the approved plans within 60 days to the satisfaction of the Building Authority.

5. After the Appellant and the Respondent had filed their statement of particulars and the representations in response in June and November 2010 respectively, it was brought to the attention of the Respondent (apparently by a letter from the Appellant dated 29^th November 2010) that there was in fact a mistake in the description of the unauthorized building works in the 1st Building Order, in that the reference to “Block 2” should read “Block 4”.  

6. By a letter dated 16^th December 2010 from the Respondent to the Secretary to this Tribunal, the Respondent expressly acknowledged the mistake and stated that a “superseding order no. UBZ/U25-03/0087/09” (“the 2^nd Building Order”) had already been served on the Appellant on 10^th December 2010 to supersede the 1^st Building Order.

7. By copying the said letter to the Appellant, the Respondent also invited the Appellant to confirm whether he would continue to appeal against the subject order which, the Respondent accepted, “had been superseded and is no longer in force”.’

6.  The Tribunal was of the view that it did not have the jurisdiction to dismiss the 1^st Building Order. Instead it dismissed the applicant’s appeal but ordered the respondent to pay the applicant costs of the appeal in the sum of HK$1.  This sum was granted because the applicant had indicated that he had no intention to obtain any monetary gain out of public fund and was content to ask for a nominal award of costs in the sum of HK$1. 

The applicant’s case

7.  The applicant claimed that it was wrong for the Tribunal to dismiss his appeal.  The gist of his complaint was that the decision of the Tribunal effectively deprived him of the constitutional right to complain against the wrongdoing of the Buildings Department.

8.  Amongst the reliefs sought by the applicant in the proposed judicial review was for the Court to correct the different ‘irrational’ decisions of the Tribunal and to decide the best lawful procedure for correcting errors and mistakes of the building orders after an appeal has been lodged.

9.  The applicant further claimed that he had conducted a research of similar cases decided by the Tribunal and he found that there were inconsistencies in the decisions.  This is what the applicant said :

‘ 12. ……, the Applicant really found a very similar case AT 360-2009, wherein the appellant insisted on continuing the appeal of the superseded order for complaining the wrong doing of the Building Department. Similarly the Appeal Tribunal dismissed the appeal based on the ground that the order had been superseded. To the surprise of the Applicant, the Appeal Tribunal really ruled the Appellant of AT 360-2009 to pay cost to the Respondent, punishing him for not withdrawing the appeal. The Applicant found that the warning letter of the Appeal Tribunal was real and not a threat.

……

23. ……in the precedent case AT 817-2008, the Appeal Tribunal proceeded to hear the substance of an appeal for academic purpose, although the appealed order was no longer in force during the hearing.  The Appellant prevailed in that case and cost was awarded properly (as compared to this case) in favor of the Appellant according to the principle of cost follow the event.  The AT 817-2008 precedent case indicated the current Appeal Tribunal panel has the power to follow the decision of the AT 817-2008 panel so as not to adversely violate the cost follow the event principle of law.’

10.  The applicant in substance relies on the same grounds in his present application. 

Our view

11.  Section 50(2) of the Buildings Ordinance provides that :

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

12.  It is not necessary for the purpose of this application to decide whether the applicant has raised a reasonably arguable point that the Tribunal should have allowed the appeal and dismissed the 1^st Building Order instead of dismissing the appeal, so as to enable him to apply for judicial review.  The reason is that one of the established principles in judicial review is that the Court will not proceed to decide on an academic question.  For all intents and purposes, the Building Authority had acknowledged the mistake of the 1^st Building Order and had replaced it by a 2^nd Building Order.  Hence the 1^st Building Order was of no effect and the applicant was not, in any way, prejudiced by the Tribunal dismissing his appeal. Further the applicant was prepared to accept a costs order of HK$1.  This was precisely what the Tribunal had ordered.  It would be wrong for the Court to grant leave simply because there are inconsistent decisions of the Tribunal. 

13.  In our view the application is not reasonably arguable and we will refuse the applicant’s application.