LAU CHI WANG and 613 Others as listed in the Schedule attached hereto v. APPEAL TRIBUNAL (BUILDINGS)

HCAL 587/2022

[2024] HKCFI 2046

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 587 OF 2022

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J U D G M E N T

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A.  Introduction

1.  The Applicants in these judicial review proceedings are owners of 489 flats in a large scale private housing estate known as the Braemar Hill Mansions (“Estate”) located in North Point. There are 925 flats in the Estate in total, and 876 of them have a similarly constructed unauthorized building works (“UBW”) structure attached to the external wall next to the kitchen of the flat. In 2018 and 2019, a total of 876 building orders were issued in relation to each of these UBWs by the Buildings Authority (“BA”), requiring them to be demolished.

2.  Amongst the 876 flats served with the orders, owners of 555 of them appealed to the Buildings Appeal Tribunal. The 555 appeals were heard together in December 2021. By a determination (“Determination”) dated 24 March 2022, the Tribunal dismissed all the appeals.

3.  Amongst the 555 whose appeals were dismissed, the owners of 489 of them sought leave to apply for judicial review by a Form 86 dated 7 July 2022. I directed a rolled-up hearing, fixed for 29 December 2022.

4.  At the hearing, the Applicants were represented by Mr Mike Lui of Counsel (now Senior Counsel). The BA was represented by Mr William Liu, Deputy Law Officer (Civil Law) (Ag.) and Ms Jess Chan, Assistant Law Officer (Civil Law) (Ag.).

5.  At the end of the hearing, I reserved my decision. This is my Judgment.

B.  Background Facts

6.  The Estate was completed and occupied in 1978. There are 15 residential blocks with a total of 925 flats. The 15 blocks are constructed in two configurations: the T blocks and the Y blocks, with “T” and “Y” denoting the shape of the configuration.

7.  As said, 876 similarly constructed UBWs are found amongst the 925 flats, taking the prevalence to 95%. Whilst there may be slight variation amongst the UBWs, they are largely similarly constructed. There is an unenclosed drying space next to the kitchen of each flat. The UBWs are created by constructing a floor slab over the drying space, thus enclosing the originally unenclosed drying space.

8.  The UBWs are “unauthorized” building works because they were built without prior approval from the Building Authority (“BA”), in contravention of section 14 of the Buildings Ordinance Cap 123 (“BO”). Section 14(1) has remained materially unchanged since the late 1970s. Section 14(1) imposes a two-tier approval requirement before carrying out construction work: (a) the BA’s approval of the building plans then (b) the BA’s consent to commence the actual construction work.

9.  Section 24(1) empowers the BA to issue an order requiring demolition of structures built in contravention of the BO. Section 24(3) further enables the BA to carry out the demolition itself if the relevant owner fails to comply with the demolition order. The UBWs, being constructed in contravention of section 14(1), are liable to enforcement action under section 24.

10.  The enforcement action underlying the current dispute is not the first attempt made by the BA to order the demolition of the UBWs under section 24, but the third.

11.  The first attempt started around 1978, shortly after the Estate was occupied. By then, the total number of UBWs stood at around 239, representing about 25% of the total flats. From 1978 to 1979, the BA issued at least 224 orders under section 24 requiring the demolition of the UBWs. As the discrepancy in the figures indicates, not all UBWs were made subject to the demolition orders. The evidence seems to suggest that the total number of demolition orders may have been more than 224 on that occasion, but I will use this figure in this Judgment for convenience.

12.  The owners of the UBWs engaged an engineering and architecture firm known as Wong & Ouyang (“W&O”) to negotiate with the BA with the view to prevent the demolition of their UBWs. They appointed Mr Leslie Ouyang, a registered structural engineer, from W&O as the authorised person. There followed a prolonged negotiation process with the BA from 1979 to 1986. W&O first submitted building plans for the owners which were then approved by the BA in 1979, but it is disputed whether the plans referred to the existing UBWs or some new but similar structures proposed to be built. Then W&O conducted structural investigation into the UBWs in the early 1980s. 239 flats were involved in the structural investigation conducted by W&O. At the conclusion of the investigation, W&O confirmed 236 UBWs as structurally safe and the remaining three were found to be unsafe and were demolished by the owners. The BA withdrew all the 224 orders in the same year upon being satisfied with the structural investigation.

13.  The enclosure of the drying space also led to extra gross floor area (“GFA”) for each flat in contravention of the Government lease granted to the Estate. Running in parallel to the negotiation with the BA, there was also a discussion with the Crown Land & Survey Office (“CLSO”) in respect of those extra GFA. Eventually the CLSO offered the owners the option of paying a premium to modify the lease to cater for the extra GFA and thus preventing enforcement action for breach of the lease. For reasons unknown, the offer was not taken up by the owners and no premia were paid at the end.

14.  The second attempt to take enforcement action occurred some five years later. In 1991, the BA issued two section 24 orders against two UBWs in the Estate on the same basis that they were built without prior approval of the BA. The owners appealed against the orders to the Tribunal which heard the appeals in 1993. By then, the number of UBWs in the Estate had doubled to 435, representing about 47% of the flats. The owners claimed that they had a legitimate expectation that it would be inappropriate for the BA to exercise its discretion to seek the demolition of the UBWs where they were structurally safe. By a decision given in 1993 (“1993 Decision”), the Tribunal found in favour of owners.

15.  In light of the focus placed upon the 1993 Decision in argument, it may be helpful here to give a little more detail about it:

(1)  The Tribunal had no doubt that the relevant enclosed areas were illegal building works, such that they fell within section 24 of the BO, where no approval had been sought for those works as required under section 14.

(2)  Hence the issue was whether the discretion of the BA in issuing the demolition orders had been properly exercised.

(3)  The Tribunal noted that the position taken by the appellants was that they understood the BA to tolerate such illegal structures as long as the structure was safe, and that this was not an unreasonable stance to adopt. Further, the applicants argued that it was unfair for the BA to “single out” the appellants when there remained so many flats in the Estate where no action would be taken. It was the appellants’ wish to be put in the same position as the owners of these flats.

(4)  The Tribunal noted that the position taken by the BA was that the illegal works fell within the relevant 1988 policy and were new, calling for high priority action. Further, the fact that other flats in the Estate had illegal structures was neither here nor there, and no representation was made to the appellants. Nor was any offer of lease modification by the CLSO/DLO any form of representation by the BA.

(5)  The Tribunal considered that the appeals had not been easy to decide, because two quite conflicting principles were involved.

(6)  On the one hand, it is important to recognise that the BA is given by statute the duty to ensure that there are no illegal buildings or building works in Hong Kong and the reason for this is clear: public safety is involved since an illegal structure is by its very nature one that has not been vetted by the BA for safety or other relevant considerations.

(7)  On the other hand, it is also important to recognise the expectations of building owners as far as additions to their homes are concerned when such expectations are derived from the acts or omissions of the BA.

(8)  The Tribunal took the view that the latter principle prevailed in the two appeals.

(9)  The main reasoning was set out by the Tribunal in §11 of its decision, to which I shall return below.

(10)  But the Tribunal emphasised the uniqueness of the two appeals in case anyone would think that the decision were to set any sort of precedent.

(11)  Further, the relevant works remain illegal, but it is just that the appellants now found themselves in the same position as the other flats in the Estate which are, for the time being, tolerated.

(12)  Whether they would be subject to enforcement action in the future along with the others was something unnecessary for the Tribunal to form a view on.

16.  No enforcement action was taken by the BA against any UBWs in the 25 years after the 1993 Decision, until the third attempt in 2018. By then, the number of UBWs further doubled to 876, representing almost 95% of all flats in the Estate.

17.  The Applicants said that the action and inaction of the BA (and the CLSO to some extent) three to four decades ago have given rise to the legitimate expectation that they should be allowed to retain the UBWs now and further on into the future as long as the UBWs remain structurally safe.

18.  Mr Lui emphasised the uniqueness of the factual circumstances of this case. It is not uncommon when someone says, “it is no exaggeration that …”, there then follows some exaggeration. In any event, Mr Lui submitted that it is no exaggeration to say that this case presents an extreme scenario of the exercise of discretion under section 24(1) to enforce against UBWs, involving: (1) consistent conduct on the part of the BA permitting the existence of the relevant structures since 1979, for over 40 years affecting the living and livelihood of hundreds of property owners; (2) specific representation made by the BA in 1986 at the end of a protracted period of negotiation with the owners, that the structures could continue to exist because they were structurally safe; (3) the unsolicited giving of an option to the owners that the structures could continue to exist, if they could be demonstrated to the BA’s satisfaction that they were structurally safe after investigation; (4) the owners’ relying on the said option resulting in detriment to them in incurring expenses for structural investigation, with the BA having actual knowledge of such reliance and detriment; and (5) the absence of any consideration accorded by the officers issuing the Building Orders to the circumstances in which the structures have been permitted to exist for over four decades since 1979.

19.  Mr Lui suggested that the BA does not seek to dispute those facts, though he recognised it may have a different “take” on what the facts connote. However, I think it is actually the position that the BA does dispute those facts, and not just what it is said they might connote. Insofar as necessary, that can be explored below.

C.  The Applicants’ proposed Grounds of Review

20.  In the Tribunal, the Applicants were represented by Mr Peter Clayton SC. Mr Clayton’s argument had three main strands: (1) in light of the past development over the decades, the owners had a legitimate expectation that there would be no action taken against the UBWs; (2) the UBWs were structurally safe, and it would be unsafe to restore them back to what was originally approved; (3) in the circumstances, it would not be a proper exercise of the BA’s discretion now to require the demolition of the UBWs.

21.  Mr Clayton ran the three strands cumulatively. The establishment of a legitimate expectation and the safety aspect of the UWBs were meant to work in tandem to drive home the conclusion that the BA had improperly exercised its discretion by ordering the demolition of the UBWs under section 24 now. (In passing, I note now and keep in mind that Mr Lui also stressed that safety must be a factor relevant to the exercise of discretion under section 24, and he submitted that structural integrity is the same point as safety hence its relevance to legitimate expectation: see below.)

22.  In its Determination, the Tribunal, presumably for convenience of presentation, answered the three strands of argument as three separate grounds of appeal. It took the legitimate expectation strand as Ground 1, that the UBWs were structurally safe as Ground 2, and the ultimate question of whether the BA had properly exercised its discretion in issuing the section 24 orders as Ground 3. The Tribunal rejected Ground 1 and Ground 2 and then essentially relied on those rejections also to reject Ground 3.

23.  It is in the Tribunal’s reasoning in rejecting the legitimate expectation argument – or Ground 1 – that Mr Lui found his grounds of review for these judicial review proceedings.

24.  As Mr Lui emphasized, whilst the Form 86 pleaded two grounds of review, the essence of the challenges being substantive legitimate expectation on the exercise of discretion under section 24(1), that legitimate expectation being that the structures comprising the UBWs need not be demolished so long as they remain structurally safe.

25.  The Tribunal rejected the legitimate expectation argument on two bases. First, it relied on the decision of Chow J (as Chow JA then was) in Magic Key v Appeal Tribunal (Buildings) [2020] HKCFI 1716, in finding that the expectation as claimed by the Applicants would not be legitimate in the sense that it was unlawful and/or unreasonable: see §§16-18. Second, on the facts, there was no representation or promise made by the BA which the Applicants could point to in support of the alleged legitimate expectation: see §§20-31.

26.  On the first finding, Mr Lui said the Tribunal made a legal error in thinking that, for structures built in contravention of section 14, it could never be legitimate to expect the BA to exercise its enforcement discretion under section 24 in the Applicants’ favour. He said this legal error arose from the Tribunal’s misunderstanding and misapplication of Magic Key. I will refer to this ground as the “Legal Error Ground”.

27.  On the Tribunal’s second finding, Mr Lui said the Tribunal’s assessment of the facts was irrational or perverse. He said the Tribunal’s analysis of the facts and the various correspondence was tainted by the misunderstanding of the law on legitimate expectation, had adopted a fragmented approach in viewing the past events, had wrongly construed some of the correspondence and had wrongly taken into account the BA’s enforcement policy against the UBWs which are irrelevant matters. I will refer to this ground as the “Perversity Ground”.

D.  The Preliminary Point

28.  Before turning to Legal Error Ground and the Perversity Ground, I will deal with a preliminary point raised by the BA first.

29.  Mr Liu, representing the BA, said that it is indisputable that in order to rely on the doctrine of legitimate expectation, the Applicants must be the representees at the time when the representation was made.

30.  Mr Liu said that the Applicants must first show that they are within the class of persons to whom the relevant representations were directly made. The discussions from 1979 to 1986 were between the BA and those owners who were represented by W&O back then. In 1986, W&O only confirmed the structural safety of the UBWs found in 236 flats in the Estate. Only the owners of these 236 flats were the direct representees of that process. Many of these flats had changed hands over the decades. As it now stands, amongst the 614 Applicants, only 36 of them were amongst the owners of those 236 flats confirmed as safe in 1986.

31.  Mr Liu said the remaining 578 Applicants could not benefit from the negotiation ending in 1986. They either did not participate in the joint effort mediated through W&O or only became an owner in the Estate after 1986.

32.  Mr Lui objected to this preliminary point on three fronts. First, he said this is a new point which was not raised in the Tribunal and the BA should be prevented by the Flywin principle in raising it now. Mr Lui referred to the Court of Final Appeal’s decision in SJ v Timothy Wynn Owen KC [2022] HKCFA 23, in which the CFA highlighted that the unfairness arose not only from the absence of evidence on the new point raised but the impact on how the arguments in the court below might have been run had the point been raised.

33.  Mr Liu, representing the BA, first said that this preliminary point is not “entirely new”. He referred to the BA’s opening and closing submissions in the Tribunal, as well as §34 of the Tribunal’s Determination. But as Mr Lui has pointed out, all the references were raised in the context of Ground 2 – namely that the UBWs are structurally safe. There, the BA argued and the Tribunal accepted that amongst the 555 UBWs which Mr Clayton claimed to be safe, not more than 236 of them had undergone the structural investigation conducted by W&O. This observation was not raised or developed to make the point that some of the Applicants are not the direct representees of whatever representations might have been made in the negotiation process.

34.  Mr Liu also said that the preliminary point was raised to clarify the misleading information provided by the Applicants in their Form 86 which stated that all the Applicants “at the material times were and still are the owners of individual flats in Braemar Hill Mansions” with “material times” said to include the period from 1979 to 1986. That is a fair observation, but the BA could have corrected the facts without raising a new argument.

35.  Thirdly, Mr Liu said this is not really a Flywin situation because it is not an appeal but a judicial review in which the Applicants could have addressed the new evidence raised by the BA by way of reply evidence, but the Applicants had chosen not to do so. I think there is a tacit acceptance on the BA’s part that this preliminary point is indeed a new point, which could only be substantiated by the new evidence now presented to the judicial review court. As Mr Lui said, the unfairness of raising a new point rests not only on the absence of evidence in the avenue below but also on the impact on the manner in which the other side could have run their case had the new point been raised below.

36.  Further, the nature of judicial review makes it more objectionable in raising a new argument compared to an ordinary appeal. The Court, exercising its judicial review jurisdiction, could only review the Determination made by the Tribunal and the process by which the Determination was reached. The Court probably cannot decide on the preliminary point afresh when it was neither raised before nor decided by the Tribunal.

37.  Mr Lui’s second objection is that this new preliminary point is in any event futile or unhelpful to the BA’s case. He said if the Court considers the preliminary point relevant, it means the Tribunal must have failed to consider a relevant matter. The correct remedy would be to quash the Determination and to remit it back to the Tribunal for reconsideration. It is slightly odd to see this point as a relevant argument not addressed by the Tribunal when (as already accepted by me) the argument was not raised before. The Tribunal hearing was conducted in an adversarial setting and both sides were represented by Counsel; the Determination will not fall to be quashed on the basis that the Tribunal failed to address an argument which was not raised by the parties.

38.  Mr Lui’s third objection was that the BA’s proposition – namely that only direct representees of the negotiations from 1979 to 1986 are entitled to rely on the legitimate expectation – is in any event wrong in law.

39.  He relied on R v Jockey Club ex parte RAM Racecourses Ltd [1993] 2 ALL ER 225 (found on the BA’s list of authorities). The facts of that case were that, in 1988, the Jockey Club issued a report saying that an additional 60 fixtures would be allocated in 1990 and 1991 and that an unspecified number of fixtures should be made available to any new licensed racecourse. The report was only sent to established racecourse owners but not prospective owners. The applicant was not an established racecourse owner and the report was not sent to him, but he had obtained a copy of the report by himself. He then invested on a site in the belief that he would be allocated at least 15 fixtures in 1991 but he was not. The applicant sought judicial review against Jockey Club on the ground of legitimate expectation. At pp238f-239f, the court found that in that circumstance – the applicant not being a direct representee to whom the report addressed but who had nonetheless obtained the report by himself – the applicant had to establish that he was entitled to rely on the representation by showing that he was nevertheless someone the representation was intended to reach and affect and the representation in fact did reach and affect him. The applicant there failed because the Court found that it was unreasonable for the applicant to have relied on the representation without first inquiring directly with the Jockey Club whether his expectation about 15 fixtures would be allocated to him was correct or not.

40.  Mr Lui said what the BA had said and done was clearly intended to reach all owners of the Estate, rather than only those represented by W&O. He pointed to the fact that the negotiation with the CLSO on modifying lease involved the entire Estate and not only those owners with UBWs and the CLSO was clearly acting together with the BA in a joint effort within the Government. He also pointed out that the two applicants in the 1993 Decision were also not amongst the original group of the 236 flat owners and yet they succeeded on claiming legitimate expectation. One pair of applicants in the 1993 Decision – being a couple who purchased a flat after 1986 – were able to show evidence that they had seen some of the correspondence with the BA before they purchased the flat.

41.  Mr Lui said had this entitlement point been raised before the Tribunal, the 578 Applicants could have adduced evidence to show whether they had make suitable enquiries, particularly with the BA, applying Jockey Club. Mr Lui said this highlighted the unfairness, if the BA is allowed to raise this new point in these proceedings.

42.  I do not think Jockey Club can assist Mr Lui. For those 578 Applicants to benefit from Jockey Club, they would have to show that (a) the BA (and possibly the CLSO) intended the relevant correspondence to reach not only those represented by W&O but all the owners of the Estate from time to time rather than only up to 1986; (b) that correspondence did reach the owners as a matter of fact; and (c) they had made suitable enquiries with the BA. I think it is highly unlikely that the BA in 1986 had intended their correspondence with W&O, which only represented 239 flats, to reach and to have effect on owners or flats beyond those 239 flats. I keep in mind the relatively small number of UBWs at the time. I also have some doubt as to whether the Applicants could produce evidence to prove that suitable enquiries had been made with the BA when that, on a strict application of Jockey Club, that would require them to check with the BA whether they could retain the UBWs when most of UBWs were only built after 1986 and were never part of 1980s negotiation.

43.  However, I have already accepted Mr Lui’s submission that this direct representee point is a new point not raised in the Tribunal and I would not allow the BA to raise it now. Although canvassed at some length already, it is not profitable to discuss it further.

E.  The Legal Error Ground

E.1  How the Point Arises

44.  The Legal Error Ground is said to have arisen from §§16-18 of the Determination, which contains the entirety of the Tribunal’s analysis on why the claimed expectation (if substantiated) should be rejected as being unlawful or unreasonable:

4.2 Applicable principles on legitimate expectation

16. In Magic Key Ltd v Appeal Tribunal (Buildings) [2020] HKCFI 1716, Chow J (as he then was) summarized (at §38) the legal position in relation to legitimate expectation as follows: -

38. In relation to the Applicants’ argument based on legitimate expectation, it is well established that an expectation, to be legitimate, must be both lawful, in the sense that the benefit must be something that can be legally accorded, and reasonable (Ng Siu Tung v Director of Immigration (2002) 5 HKCFAR 1, at §§101 and 112). The Applicants’ expectation (if any) that they would be permitted to retain and use the UBWs is neither lawful nor reasonable.

(1) It is not lawful because the BA has no power of dispensation from the statutory requirements under s 14 of the Ordinance that no building works shall be commenced or carried out without first having obtained the requisite approval and consent in writing from the BA.

(2) It is not reasonable because, as has repeatedly been held by the court, the BA’s policy regarding unauthorized building works is an “enforcement” policy, not a “tolerance” policy (Sky Wide Development Ltd v Building Authority, HCAL 116/2008 (24 October 2008), at §10; Technic Investment Co Ltd v Appeal Tribunal (Buildings) [2012] 3 HKLRD 245, at §27). The fact that the BA has not taken action against an unauthorized structure for a long period of time does not mean that no action can, or will, be taken against it (Wong Tin Chor v The Appeal Tribunal (Buildings Ordinance) [2020] HKCFI 562, at §20(1)).

In short, no owner of premises in or at which unauthorized building works are found has any right or legitimate expectation to retain them (see Sky Wide Development Ltd ante, at §18). In the present case, there is also no relevant representation or promise made by the BA which the Applicants can point to in support of the alleged legitimate expectation.

4.3 Applying the principles to the facts of these Appeals

17. In the present Appeals, there is no dispute that the PSs are UBWs.

18. In his oral closing submissions, Mr. Clayton SC fairly accepted the general principles stated in §38 of Magic Key. However, although the [Applicants’] Statement and Mr. Clayton SC’s opening submissions referred to legitimate expectation, with respect, the content of the alleged legitimate expectation has not been clearly defined by the Appellants. Insofar as we can gather, on the Appellants’ case, the alleged legitimate expectation appears to be one that “it would not be appropriate for the BA to exercise its discretion to seek demolition of enclosed drying spaces at [the Estate], where these structurally safe”. In our view, this amounts to the same thing as saying that the Appellants had the right or legitimate expectation that they could retain and use the PSs. Applying Magic Key, we hold that the Appellants have no such right or legitimate expectation.

45.  As I understand it, Mr Lui attacked the Tribunal’s application of Magic Key as follows:

(1)  On a correct reading of the Judgment, Magic Key does not lay down as a general principle that one can never expect the BA to refrain from taking enforcement action under section 24 against unauthorized building works.

(2)  Neither the fact that the relevant building work was built in contravention of section 14 or that the BA’s policy regarding unauthorized building works is an enforcement policy dictates the conclusion that an expectation of non-action must be unlawful and unreasonable. §38 of Magic Key did not decide that (but if it did, it would be wrongly decided).

(3)  Magic Key was but a correct application, on its own facts, of the more general principle that for an expectation to be legitimate, it must be both lawful and reasonable.

(4)  Whether a particular expectation regarding how the BA would exercise its discretion under section 24 is lawful or reasonable must be assessed individually. But the Tribunal did not carry such an individual assessment.

(5)  Rather, the Tribunal twisted the expectation claimed in the present case as the same as the one claimed in Magic Key, and then conveniently applied §38 of Magic Key to a strawman expectation (not Mr Lui’s exact word) which was not claimed in the present case.

46.  Implicit in Mr Lui’s arguments must be a recognition or concession that if the nature of what the Applicants claimed in the instant case would amount to what was claimed in Magic Key, then such an expectation could not be legitimate.

47.  Mr Lui’s reading of Magic Key was not disputed by Mr Liu. Nor was it disputed that it is possible to have a lawful and reasonable expectation that the BA would refrain from taking action under section 24 against unauthorized building works. But Mr Liu disagreed that the Tribunal had misunderstood and then misapplied Magic Key.

E.2  §38(1) of Magic Key and the lawfulness to expect non-action

48.  Mr Lui said that section 14 and section 24 serve different roles in the BO. Section 14 makes any structure built without the prior approval and consent from the BA an unauthorized structure. That is a strict requirement and the BA has no power or discretion to dispense with that requirement or to give retrospective approval. But it does not mean that the BA must take enforcement action against unauthorized structures under section 24, because section 24 clearly confers a discretion on the BA – denoted by the word “may” – whether to take enforcement action or not. Since the enforcement power under section 24 exists as a discretion (as opposed to a duty), the BA must have the power to refrain from taking enforcement action against unauthorized building works. To say otherwise would render the BA’s discretionary power granted by section 24 nugatory.

49.  Mr Lui said Magic Key did not decide otherwise.

50.  Mr Lui said the expectation claimed in Magic Key was decided to be unlawful because of the way in which the expectation was formulated, which is different from the present case. At §15 of Magic Key, it was stated:

In relation to “Ground 5” [i.e. the legitimate expectation claim], the Appellants contended that the UBWs were constructed with the approval of the BA and they should not be regarded as unauthorized building works. It was argued, in particular, that:

(1) The alleged UBWs were constructed at the same time (or approximately the same time) as the Building was constructed.

(2) In all likelihood, upon completion of the Building, when the BA inspected the Building, the alleged UBWs were already in existence.

(3) Prior to the issue of the OP, the BA was under a duty to stop any unauthorized construction works, and to refuse the issuance of the OP if the alleged UBWs were unauthorized.

(4) Although the alleged UBWs were not shown on the Approved Plans, the BA issued the OP

51.  As I understand it, Mr Lui highlighted the following distinctions, which are inter-related, between the expectation claimed in Magic Key and the one claimed in the present case:

(1)  First, he said the expectation claimed in Magic Key in effect requests that section 14 be dispensed with, and for what would otherwise be unauthorized to be regarded as authorized; and for the unlawful to be treated as lawful. Such an expectation was plainly unlawful and was thus rejected by Chow J. In contrast, the Applicants here accept that their UBWs, built in contravention of section 14, would remain unlawful forever. They do not ask for their UBWs to be regarded as already approved or consented to under section 14. The expectation in Magic Key was claimed in the context of section 14 whilst the one in the present case is claimed in the context of section 24.

(2)  Second, the expectation to retain the unauthorized structures in Magic Key was not conditional upon their being structurally safe, whereas the expectation claimed in the present case is attached with such condition. Mr Lui said the Applicants here did not commit the BA forever from taking enforcement action. They only expected tolerance or non-action as along as the UBWs remain safe.

52.  I initially saw some force in Mr Lui’s submissions. But upon reflection, I think the distinctions are more apparent than real.

53.  First, the majority of the 876 UBWs were only built after 1986. The number of UBWs around 1986 was 239. The additional 637 were built in the decades afterwards. If the spreadsheet provided by the BA is correct, among the 489 flats with UBWs involved in the present judicial review, only around 183 of them existed before 1986, meaning that the remaining 306 were all built after 1986.

54.  For the owners of those 306 UBWs, implicit in their case is that they could, relying on what the BA said or had done by 1986 about the UBWs in other flats, to lawfully expect the section 14 requirement on obtaining prior approval and consent be dispensed with after 1986. After 1986, owners whose flat had not yet been equipped with an UBW could also build one without having to seek prior approval or consent from the BA. By way of extension, the remaining 49 flats in the Estate which have not yet built an UBW by now could also build their own UBW in the future without going through section 14.

55.  Needless to say, this seems an extraordinary proposition, perhaps more than the one put forward in Magic Key. In Magic Key, the applicants expected the representation (the granting of occupation permit) to have the effect of waiving or suspending the operation of section 14 to an existing structure built before the representation was made. Here, the Applicants expected the BA’s representation to have the effect of suspending the operation of section 14 for an unspecified number of yet-to-exist UBWs which might or might not be built in the future in the Estate. Such an expectation must be unlawful.

56.  Even for the 183 UBWs already in existence by 1986, I doubt if the Applicants are not asking for the suspension of section 14 in the same way as in Magic Key. Section 24 is what gives some teeth to section 14. Section 14 is enforced through section 24 because imposing an order under the latter is the consequence of non-compliance with the former. Asking the BA to refrain from taking enforcement action under section 24 is to suspend the consequence of non-compliance with section 14. Why should section 14 be complied with when non-compliance has no consequence? Ordinary home-users would care very little whether their structure is designated as authorized or unauthorized under the BO as long as they know the BA would not take action against them.

57.  I suppose Mr Lui would argue that the Applicants only ask for the consequence of non-compliance with section 14 to be suspended as long as the UBWs remain structurally safe, rather than forever. This leads to consideration of the second distinction.

58.  The second distinction is that the expectation in the present case is conditional upon the UBWs being structurally safe, in contrast to Magic Key. This distinction is illusionary rather than real.

59.  Whilst the formulation in Magic Key does not include structural safety as an express condition, Mr Lui would be wrong if he was implying that the effect of the legitimate expectation claimed there would allow the applicants to retain the unauthorised structures even if they were or had become structurally unsafe.

60.  Section 24 is not the only provision which allows the BA to take enforcement action against buildings or structures. An important – if not the most important – statutory purpose of the BO is to give to the BA various powers to ensure that buildings are structurally safe, and to demolish a building or part of it when it has become unsafe. It is unsurprising that there are various provisions empowering the BA to take enforcement action when buildings or structures are or have become unsafe regardless of whether they have been pre-vetted by the BA under section 14: see for example, sections 24A, 26, 26A, etc.

61.  The expectation claimed in Magic Key only sought to dispense with complying with section 14. Even if the legitimate expectation were to be found established, it would have no impact on other provisions enabling the BA to take enforcement action against structurally unsafe buildings. In consequence, their unauthorized structures would still be liable to enforcement action under, say, sections 24A, 26, 26A of the BO if they were not structurally safe.

62.  Mr Lui contrasted the expectation here with that in Magic Key as one is conditional upon structural safety and one is without such a condition. But the structural safety requirement is always there by the operation of the BO, even when it is not expressly included.

63.  Not expressly to include the structural safety condition is not the same as expressly excluding that condition. The distinction would only be real if the formulation in Magic Key expressly excluded the structural safety condition. But that was not the case. And I do not believe Mr Lui would suggest that the owners in Magic Key expected to retain their UBWs even when they had become unsafe.

64.  In reality, the expectation formulated in the present case and in Magic Key are both subject to the structural safety condition and both of them cannot expect to retain the unauthorized structures when they had become structurally safe. This distinction is illusionary.

65.  In §17 of the Determination, the Tribunal did specifically formulate the Applicant’s claimed legitimate expectation as understood by it, and that formulation includes the condition of “where [the UBWs] were structurally safe”. I do not believe the Tribunal has misunderstood or has “twisted” the expectation claimed as one without the condition.

66.  At §17, right after the formulation of the precise legitimate expectation claimed by the Applicants, the Tribunal said (which is quoted again for convenience):

In our view, this amounts to the same thing as saying that the Appellants had the right or legitimate expectation that they would retain and use the PSs. Applying Magic Key, we hold that the Appellants have no such right or legitimate expectation.

67.  The condition of “where these were structurally safe” were no longer repeated in these two sentences. But it is implausible that the Tribunal would have simply forgotten what it had just said in the previous sentence. It is rather more likely that the Tribunal did not see any distinction arising from whether the condition is expressly included in the formulation or not. As I have said above, even if structural safety condition is not expressly formulated in the expectation claimed, it must be implicit in the formulation, or otherwise the claimed legitimate expectation would run against the statutory purpose of the BO. The Tribunal might have thought that such a condition is simply something that would go without saying.

68.  On lawfulness and the application of §38(1) of Magic Key, one may think that the Tribunal’s analysis is too brief. But I have come to the view that the Tribunal did not misunderstand or misapply §38(1) of Magic Key.

69.  The following points may also be noted.

70.  First, in any event, there was no evidence before the Tribunal that the structural safety condition was still extant at the time of the Tribunal hearing. As recognized by Mr Clayton and noted by the Tribunal at Determination §§32-34, the only evidence was that 236 flats were confirmed by W&O as structurally safe some 40 years ago. No updated information was provided about those 236 flats in 2021. Other flats were only “in the process of appointing a Registered Structural Engineer to investigate their structural safety”. Even if the claimed expectation conditional upon structural safety was found to be lawful, the Applicants would not be able to rely on it.

71.  Second, whilst the Tribunal had sought to formulate the legitimate expectation claimed with some precision, based on what Mr Clayton said in his Statement of Particulars, one could see that the Tribunal was not free from doubt as to what was the exact content of the legitimate expectation claimed. That sentiment could be easily empathized with. Mr Clayton did not seem to think that he had to show that all the 555 UBWs were structurally safe in order for them to rely on the expectation claimed.

72.  Third, I note that Mr Clayton himself did not before the Tribunal seek to distinguish Magic Key on the basis that the legitimate expectation claimed there was not conditional upon structural safety.

E.3  §38(2) of Magic Key and the reasonableness to expect non-action

73.  At §38(2) of Magic Key, Chow J referred to the fact that the BA’s policy regarding unauthorized building works is an “enforcement” policy rather than a “tolerance” policy. Mr Lui did not dispute that proposition, but he said that that does not mean the policy dictates that the BA must exercise its discretion under section 24 to take enforcement action. He further said that none of the authorities cited in §38(2) is capable of supporting such a view.

74.  In Technic Investment Co Ltd [2012] 3 HKLRD 254, Lam J (as Lam PJ then was) clarified what was said in previous cases regarding the relationship between the fact that the BA’s policy had been held to be an enforcement policy and the BA’s discretion under section 24. He said:

19. In Sky Wide Development Ltd v Building Authority HCAL 116 of 2008, 24 Oct 2008, I said at para 22,

“With respect, having regards to the following, I do not see how it can reasonably be arguable that the Buildings Appeal Tribunal could have rationally decided that the Building Orders should have been set aside even if there were any misinterpretation of the enforcement policy as regards illegal rooftop structures in single staircase building as fire hazard,

(a) The policy is a policy on priority of enforcement necessitated by limitation in resources and NOT a policy on toleration of any UBWs, and that the ultimate goal is to clear all UBWs;

(b) The necessary resources in question had been deployed when the Building Orders were made;

(c) To set aside the orders at this stage would cause a waste of resources in a manner that would not further the objectives of the policy;

(d) The Applicants had no legal right or legitimate expectation to retain the UBWs. As per the policy statement, they should have voluntarily caused the UBWs to be demolished even without any building orders and they have been given ample time to do so;

(e) As explained by the Tribunal, the UBWs in question can still properly be regarded as obstructions to fire escape even though it may be arguable (and I put it no higher than that since the Building Authority has a counter-argument) that they do not strictly fall within regulation 39(2) of the Building (Planning) Regulations;

(f) The ground relied on by the Building Authority to take enforcement action is ground (f) instead of ground (c) in the policy statement of 2001;

(g) The enforcement policy in 2001 calls for immediate enforcement action regarding high priority cases and it does not rule out enforcement actions for other cases before the completion of all high priority cases. In the press release of 2003, the Assistant Director envisaged the removal of all high priority rooftop illegal structures by 2007. The Building Orders were made in 2006. By the time when the appeals were disposed of, it was July 2008.”

20. When the case went on appeal, the Court of Appeal did not find it necessary to consider the correctness of this ground of my decision. Subsequently, in Ko Siu Luen v Appeal Tribunal (Buildings) [2012] HKLRD 149, Au J followed my approach at paras 42 to 43 of the judgment. In the present case, the BAT also adopted my approach in dismissing the Applicants’ appeal.

21. I was concerned with the 2001 Policy in Sky Wide and no reference was made to the Selection Criteria in the BUC Operation or the List of actionable and non-actionable UBWs in that case.

22. Mr Chan submitted that I was wrong in Sky Wide because according to the Court of Appeal in Quebostock Ltd v The Building Authority CACV 354 of 2002, 24 May 2006, BA has a discretion to withhold the issue of a demolition order against a UBW. If I had suggested that there were no discretion on the part of BA, I would be in error. In Quebostock Silke JA said at p 476G,

“I differ, with respect, from the Trial Judge for I would hold the word ‘may’ in s 24 does denote a discretion. It is not a matter of ‘all of nothing’. The Building Authority may make an order or it may not.”

23. His Lordship did continue to make the following remarks,

“But it would seem quite wrong if s 14 were contravened by the failure to either apply for an initial approval of plans or for the secondary approval to commence works, then the result could be that a fully erected building which has escaped the notice of the Building Authority could be ordered by him to be totally demolished without the provision of the short and inexpensive appeal to the Appeals Tribunal under s 43. Indeed if there be a duty it must be so ordered even if the Building Authority thought that the building was in every respect an admirable construction which contravened no other provision of the ordinance nor any other zoning plan under any other Ordinance.”

24. These remarks, though entitled to respect as coming from an eminent judge in this jurisdiction, were not part of the ratio. The issue before the Court of Appeal in Quebostock was whether the Building Authority had discretion not to order demolition as opposed to how the discretion should be exercised. It would be wrong to read the case as establishing a legal proposition that it would not be a proper exercise of the discretion to order the demolition of a fully erected structure which in all other respects (apart from the failure to build in accordance with approved plans) comply with our building laws and regulations.

25. In Link Harvest Ltd v Wayhang Development [2001] 2 HKC 652, Recorder E Chan said,

“Even though s 24 gives the Building Authority a discretion on whether to exercise its power against a particular contravention and what order it would make if it has decided to exercise its power, in my judgment, prima facie, one would normally expect that the Building Authority would take enforcement action against the unauthorised building or structures. Thus, unless there is a good reason for believing that the Building Authority would not take any action, where a building or structure was erected in contravention of the Buildings Ordinance, there is the risk of an enforcement action by the Building Authority so as to render the title of that building or that structure to be defective. It is difficult to state exhaustively what would be the good reasons. The typical one would be where the breach is very trivial, or where because of the nature and the age of the structure, the enforcement priority within the Building Authority was so low that it could be expected that the time for enforcement would not come even by the end of the practical life of the building or structure in question.”

26. Coming back to Sky Wide, I can now see sub-para (a) of para 22 might perhaps be read by someone not familiar with the background of the case as suggesting that the BA had no discretion. But that was not what I intended to say. In that sub-para, I was trying to describe the nature of the 2001 Policy on its face value. Thus, when I said “the ultimate goal is to clear all UBWs”, that was an interpretation of the policy as it stated clearly: “All UBWs are liable to be demolished”. My emphasis was that the 2001 Policy was not a policy on toleration of any UBWs.

27. I do not think there is any inconsistency between the existence of a discretion not to order demolition (as laid down by Quebostock) and a finding that the 2001 Policy is not a policy of toleration (as decided in Sky Wide, see in particular paras 5 to 10). The BA can exercise her discretion under Section 24 quite independent from the 2001 Policy. The nature and effect of the 2001 Policy has to be construed in accordance with the terms of the policy itself. Given the clear wordings of the 2001 Policy: urging owners “to take initiatives to organize for the demolition of UBWs in their premises”, the statement that “all UBWs are liable to be demolished”, and the emphasis on priority of enforcement actions, I do not see any ground for changing my view as to the nature of the 2001 Policy.

28. For the reasons canvassed above, I am of the view that the Selection Criteria in the BUC Operation are guidelines for deployment of resources instead of a policy on toleration of UBWs. I shall discuss the list of non-actionable items later.

29. Once it is appreciated that the 2001 Policy and the BUC Operation criteria were not exemption policies, it is not possible to argue that because a building did not come within the scope of these policies the BA erred in the exercise of her discretion under Section 24. These policies, by their very nature, were not policies governing how the discretion was to be exercised. They were only there to guide how the resources of the Building Authority were to be deployed and the priority in taking enforcement action.

75.  It is convenient to supplement the background by noting that the BA has had 4 policies over the decades, implemented in 1975, 1988, 2001 and 2011. The 876 orders in the present case were issued under the 2011 Policy. It was undisputed that all the policies, including the 2011 Policy, are “enforcement” policy rather than “tolerance” policy.

76.  Mr Lui’s ‘takeaway’ from Technic as quoted above was that the BA’s policy only governs resources allocation within the authority, rather than dictating its exercise of discretion under section 24. If the BA can take enforcement action even when the unauthorized work does not fall within the applicable policy, the reverse must be true – that the BA can refrain from taking action even if the unauthorized work is a target of enforcement under the policy. Thus, the fact that the applicable policy is an enforcement policy does not necessarily lead to the conclusion that it would be unreasonable to expect the BA to refrain from taking action under section 24. Hence, he said, Magic Key’s conclusion on unreasonableness must be read as a decision on its own facts.

77.  I have no quarrel with the proposition that the BA still retains the discretion whether or not to issue a demolition order under section 24 despite the fact that its policy is an enforcement policy rather than a tolerance policy.

78.  But, the tenor of passage quoted from Technic is certainly that the nature of the policy, being an enforcement policy, would point to (whilst not dictate) the conclusion that to expect non-action is unreasonable. As submitted by Mr Liu, a policy of enforcement forms part of the context in which the reasonableness of an expectation is to be assessed. A policy of enforcement does not sit well with an expectation of tolerance. Therefore, whilst the enforcement nature of the policy may not be determinative in condemning an expectation of non-action as unreasonable, it is a relevant (or even strong) factor pointing towards unreasonableness. Mr Lui could not, and did not, argue that the Tribunal’s reference to the enforcement policy was irrelevant.

79.  Though it does not seem to be specifically connected to the enforcement nature of the policy, I would also point out Lam J’s endorsement of Link Harvest (at §25 of Technic) that the normal expectation one should have is that the BA would take enforcement action against unauthorized building works even though under section 24 the BA does have the power not to do so, and it takes a “good reason” to depart from the normal expectation of enforcement.

80.  Reading the Tribunal’s reference to §38(2) of Magic Key together with §§42-44 of the Determination, it would become clear that the Tribunal did not, as Mr Lui seemed to have suggested, make the mistake that the BA cannot refrain from issuing demolition orders on the basis that the 2011 Policy is an enforcement policy.

81.  At §42 of the Determination, the Tribunal specifically recognized that “s.24 of the Ordinance confers a discretion on the BA whether to issue building orders requiring demolition of UBWs”. But the Tribunal then concluded that the Applicants had failed to persuade it that the BA had improperly exercised its discretion on the basis of legitimate expectation or that restoring the drying space in compliance with the originally approved plans would be dangerous. At §43, it again referred to §38(2) of Magic Key and that the 2011 Policy was also an enforcement policy as a further point. At §44, it said that since the demolition orders were issued to clear the UBWs in accordance with the 2011 Policy, it failed to see how it can be said that the BA in issuing those orders had improperly exercised its discretion.

82.  Reading §17 with §§42-44, the Tribunal was clearly aware that the BA retains a discretion whether or not to issue a demolition order under section 24 despite acting under an enforcement policy. But the Tribunal did see the existence of an enforcement policy as a strong factor suggesting that the reasonable expectation would be of enforcement rather than tolerance. The Tribunal was not persuaded that there were good reasons, be it legitimate expectation, structural safety or otherwise, to depart from an expectation of enforcement.

83.  In the course of oral exchange, I discussed with Mr Lui as to how the end point of the claimed legitimate expectation could come into being recognized by the BA, since one strand of his argument is that the legitimate expectation would not commit the BA forever. In other words, how would the BA know that the UBWs are no longer structurally safe, before that has showed itself in the collapse of the structures or through other forms of accident? This could only be done through regular inspection and reporting either by the BA or by the owners. The parties confirmed that the BA does have powers under the BO to order such regular inspections by the owners, such as under the provisions imposing regular inspections for buildings over 30 years old. But if what is expected to happen is simply what the BA or the owners would have to do under other provisions of the BO, this structural safety condition could not assist in making the legitimate expectation as formulated more reasonable in comparison to Magic Key. If some other schemes of regular inspection are expected, the question remains how such inspection could be implemented in practice. The practicality issue points to a lack of clarity in the alleged representation, and also to the unreasonableness of the legitimate expectation.

84.  Even if the Legal Error Ground is reasonably arguable, it is not established on a substantive basis.

F.  The Perversity Ground

F.1  Introduction

85.  Before considering whether an expectation is lawful and reasonable, the prior question is whether that expectation is based upon a representation or promise made by the public body. It is settled law that the representation or promise has to be clear, unambiguous and unqualified. Mr Lui reminded this Court that where the representations are addressed to a wide audience including some quite unsophisticated persons, the Court should not be astute to find ambiguity or qualification but should look at the real impact of the representation: see §360 of Ng Siu Tung. But I do not see much relevance in this proposition since the communication with the BA was mostly mediated through Mr Leslie Ouyang, a qualified authorised person under the BO who had the expertise in the relevant matters.

86.  Mr Lui also reminded this Court that: (1) the representation need not be made in a form of words, but can be shown in a consistent course of conduct over a period of time or an established practice; (2) whatever form a representation takes, the question remains how it would have been reasonably understood by the representee in the context upon a fair reading; (3) words or conduct should not be understood in isolation but fall to be assessed holistically in view of the overall circumstances; and (4) detrimental reliance could serve as evidence to show that the representee did construe the representation in the manner and as having the meaning alleged. I do not think these propositions are disputed.

87.  The Tribunal did not find that there was any representation or promise by the BA which can point in support of the Applicants’ alleged expectation: see §§20-31 of the Determination. The bulk of the evidence came from the contemporaneous correspondence between the BA (and the CLSO) and the 239 flat owners from 1979 to 1986. To answer this issue, the Tribunal had to offer its own assessment of what was done by the BA and what was said in that correspondence.

88.  The Court, acting in its judicial review capacity, would restrain from interfering with the Tribunal’s finding unless – as the heading of this Ground suggests – the Tribunal’s assessment is perverse or irrational, which is a high threshold to cross. This is especially so, when parties cannot and do not dispute what was literally said in the correspondence, but merely offer competing interpretations on what was meant, or place different emphasis on different parts of the text.

89.  Mr Lui insisted that the conclusion the Tribunal had to reach is a legal one. Be that as it may, the process requires the Tribunal to apply the correct legal approach in construing the meaning of what was said or done by the BA (and the CLSO). Since Mr Lui did not allege that the Tribunal had applied the wrong legal approach in assessment of the facts and evidence, I do not believe calling the conclusion a legal conclusion assists in lowering the threshold the Applicants have to overcome in persuading this Court to intervene.

90.  Bearing the above in mind, I will now turn to address the Perversity Ground. It will be necessary to set out in some detail the interaction between the BA (and to a lesser extent the CLSO) and the owners of the 239 flats from 1979 to 1986.

91.  In the Statement of Particulars submitted by Mr Clayton to the Tribunal, he had, perhaps for convenience of presentation, described the development from 1978 to after the 1993 Decision in four overlapping phases. The Tribunal roughly followed that structure and discussed what transpired in those four phases as four sub-grounds: Grounds 1A, 1B, 1C and 1D.

92.  As I set out the development and correspondence across the four phases, it will be convenient for me to set out the Tribunal’s interpretation of them and why Mr Lui said the Tribunal’s approach was perverse, as well as my own approach. I have slightly adjusted the order in which the four phases are presented.

F.2  First phase: 1978 – 1979: Approval of A&A plans (Ground 1A)

93.  After the BA had issued the 224 orders, W&O represented the owners to submit building plans – called “Alteration and Addition plans” or “A&A plans” to “regularize” (Mr Clayton’s word) the UBWs. After rounds of correspondence, by two separate letters both dated 29 November 1979 (“Nov 1979 Letter”), the BA approved both the A&A plans. That batch of A&A plans involved 188 flats.

94.  W&O applied for approval by submitting Forms 9, 11 and 11A and the BA gave approval by issuing a Form 12. It is obvious that those forms were designed for seeking prior approval before the actual construction of the proposed works under the then section 14 (which, for our purpose, has not changed materially over the decades). For example, in the Form 12, references were made to section 14 of the BO and regulation 30(1) of the Building (Administration) Regulations Cap 123A. It also referred to section 14(2) and reminded the recipient that approval given to the plan would not exempt the person from obtaining consent from the BA actually to commence the construction process, which is the second-tier approval needed under section 14.

95.  It was disputed what had actually been approved by the BA, when the documents involved were usual documents for proposed building works not yet constructed. The BA said in the Nov 1979 Letter (my emphasis):

5. The approval of the building plans does not imply the acceptance of the existing building works. Your attention is drawn to Section 14(2) of the Building Ordinance.

96.  The Tribunal (at §21) said that there was thus no acceptance of the existing UBWs, which was further made clear by the reference to section 14(2). The Tribunal quoted the relevant part of section 14(2): “Neither the approval of any plans nor the consent to the commencement of any building works…shall be deemed: (a)…; (b)…; (c) to grant any exemption from or to permit any contravention of any of the provisions of this Ordinance or of any other enactment”. Therefore, the Tribunal said, there was nothing that could lead the owners to believe that they could retain and use the UBWs.

97.  In the Statement of Particulars, Mr Clayton fairly admitted that the Nov 1979 Letter did not represent acceptance of the UBWs because it expressly stated otherwise. But he emphasized the UBWs existing then and now were effectively in accordance with the plans approved by the BA, and the BA’s actions afterwards did show acceptance of the UBWs.

98.  But, at the judicial review stage, Mr Lui argued that such statements were irrelevant since they only concerned the effect of section 14 rather than section 24, and that the BA plainly knew that the A&A plans submitted concerned the existing UBWs rather than for some proposed works to be built in the future.

99.  Mr Lui placed some emphasis on two letters issued by the BA before approval was given in November 1979. The submission approved was the second attempt by W&O. The first attempt was made in June 1979, which was rejected by the BA by two separate letters – one for T Blocks and one for Y Blocks – both dated 31 August 1979 (“Aug 1979 Letter”). Mr Lui said in that letter the BA had offered the owners two options, either to demolish the UBWs and rebuild, or to retain the existing UBWs by carrying out structural investigation to prove their safety to the BA’s satisfaction. The relevant text was as follows:

7. You are also advised that for the purpose of retaining the existing concrete slabs, you will have to conduct extensive investigation of each individual slab in the presence of someone from this office to prove that the concrete mix, the placement of the steel, the supports to the slabs etc. all comply with Construction Regulations. It would perhaps be simpler and easier after getting your plans approved to demolish the unauthorized work and put up new slabs in accordance with the approval plan. Please indicate your intention in this respect in your next submissions.

100.  Mr Lui said the owners did indicate their choice in the second submission by letter dated 30 October 1979 (“Oct 1979 Letter”):

We intend to investigate every additional structural slab to ascertain their structural stability. If they are found structurally sound, they will be retained. Otherwise, they will be demolished.

101.  I do not think the Tribunal’s reading of the Nov 1979 Letters could be criticized as perverse, when it expressly said that the existing UBWs were not accepted. Nor could Mr Lui cast aside the reference to section 14 as irrelevant simply because the legitimate expectation was claimed in the context of section 24. That would be too technical an approach when the consequence of violating section 14 is the triggering of section 24.

102.  Even taking Mr Lui’s reading of the Aug 1979 Letter and the Oct 1979 Letter, the Applicants had not yet conducted “extensive investigation of each individual slab in the presence of someone from this office to prove that the concrete mix, the placement of the steel, the supports to the slabs etc” by that time (or by any other time). Further, reading the Aug 1979 Letter in light of the Nov 1979 Letter, the BA plainly had not accepted the relevant UBWs.

F.3  Second phase: 1981 – 1986: submission of more building plans and structural testing of 5 flats (Ground 1C)

103.  Mr Clayton SC focused on the period from 1983 to 1986 only, but the Tribunal also looked at events which transpired in 1981 and 1982.

104.  After the A&A plans were approved for 188 flats, more owners became represented by the W&O in submitting A&A plans to the BA.

105.  On 30 March 1981, W&O submitted the A&A plans for three more flats. On 30 April 1981, those plans were similarly approved by way of the Form 12 and by a similarly worded letter (“Apr 1981 Letter”), including the statement that approval of the plans does not imply acceptance of the existing building works.

106.  Then there came a series of letters from the BA which requested demolition of the UBWs in accordance with the section 24 orders issued, and which would seem to deny the Applicant’s case that BA had already offered as an option to allow the owners to retain the UBWs upon proving their safety, either through the Aug 1979 Letter, the Nov 1979 Letter, or otherwise. It was also clarified that the approval given in the Nov 1979 Letter concerned proposed works to be built rather than the existing UBWs.

107.  The series of letters started on 26 May 1982 (“May 1982 Letter”), issued by the BA to W&O, the body of which reads:

Recent inspection by staff of this office revealed that the approved alteration and addition works at the above premises appeared to have completed without first obtaining consent from this office contravening section 14(1) of the Building Ordinance.

Thus you are required to clarify and your attention is drawn to section 4 of the Building Ordinance regarding your duty as an Authorized Person.

Please be reminded that the approval on 29^th November 1979 was given in respect of the proposed new works only and all existing unauthorized works must be removed in compliance with my notice issued under the Building Ordinance section 14 before consent for the approved new works can be given.

108.  In 1983, the BA wrote directly to individual owners. One of such letters was dated 28 December 1983 (“Dec 1983 Letter”). The letter first stated that the specific section 24 order issued against that particular flat had not been complied with, then stated as follows (original emphasis):

It was also noted that some of the owners, on whom similar Notices have been served, had appointed an Authorized Persons Mr. Leslie Ouyang to submit proposals to cover up some of the drying spaces for my approval. However, the approval of such proposals did NOT in any way indicate the acceptance or tolerance or legalization of the unauthorized works. That is to say the unauthorized works MUST be removed and the building MUST be reinstated in according with the original plans approved by the Building Authority in order to comply with my Notice. This has been pointed out to Mr Leslie Ouyang in my letter dated 29 November, 1979 copied to the Bridgewater Company Limited [the management company of the Estate] and Mr Richard WK Lee, the representatives of the affected owners. This point has also been reiterated to Mr Leslie Ouyang in my letter dated 26 May 1982.

109.  In the Statement of Particulars, Mr Clayton said that in about January 1984, the BA sent letters to flat owners to request them to make arrangements for the BA to inspect the flats. In about late January in the same year, the BA further sent letters stating that the Government Contractor would attend the flats to demolish the enclosed drying space structures. Such letter further stated that the owner was to ensure access to the flat so that the Government Contractor can carry out the work and failure to provide access may result in the BA exercising its powers under section 22(1) of the BO to break into the premises, in the presence of a police officer, to carry out the demolition work.

110.  Mr Clayton must have recognized that these letters were prima facie an ‘ultimatum’ from the BA, but he cast aside this ultimatum as “apparent” only because, he said, negotiation with the BA was on-going. At §23 of the Determination, the Tribunal quoted the Apr 1981 Letter, the May 1982 Letter and the Dec 1983 Letter (together with two more letters I will come to below) in concluding that there was no acceptance of the UBWs and no representation or promise made by the BA which could lead to the expectation as now claimed by the Applicants.

111.  The meaning of these letters is reasonably clear. But Mr Lui read the May 1982 Letter – which said that the Nov 1979 Letters only approved proposed new works and all existing UBWs must be removed – as irrelevant because the owners had already chosen the ‘structural investigation option’ rather than the ‘demolish and rebuild option’. I do not accept this interpretation.

112.  Mr Lui also said the Dec 1983 Letter clearly contradicted the BA’s earlier stance in allowing the owners the option of retaining the UBWs by showing that they were safe through structural investigation. He pointed to the fact that the letter was issued by a new officer not involved in the prior correspondence. I think implicit in the submission is a recognition that the BA, in this letter, clearly denied that the owners would be allowed to retain the UBWs by conducting structural investigation.

113.  In any event, the negotiation with the BA did continue. W&O continued to submit A&A plans for more flat owners. But in around 1984, in addition to the A&A plans, structural plans were also submitted. By a letter dated 2 April 1984 from W&O to the BA, W&O proposed to carry out structural investigation by spot checking two or three of such UBWs “to see whether the steel bars in slabs agree with the details shown on the structural plans submitted”.

114.  W&O did carry out the proposal by opening the slabs of two UBWs for checking and reported to the BA by letter dated 17 April 1984 that the steel bars arrangement agreed with those shown in the structural plans submitted.

115.  Mr Lui said these matters show that, from W&O’s perspective, the previously approved A&A plans were plainly relevant to the existing UBWs because what had to be done in the structural investigation was to see if the actual situation aligned with the plans approved. But Mr Liu clarified that the building plans approved by the Nov 1979 Letters were “A&A plans” rather than structural plans. No structural plans had ever been approved by the BA.

116.  Mr Lui also placed some emphasis on a letter dated 8 May 1984 (“May 1984 Letter”), in which he said the BA imposed the minimum requirement for the structural investigation. The BA said:

Consideration has been given to the matter of investigation of the additional slabs and my minimum requirement for the investigation is as follows:-

(i) Five slabs are to be examined first as to the manner of fixing to the original structure.

(ii) Secondly and depending on the results from (i) above being satisfactory seven slabs are to be checked as to reinforcement.

(iii) Examination of architectural feature to confirm the arrangement of reinforcement indicated in your amended drawing No. Y-303 is also required as the details did not appear on the original approved drawings.

Please advise if you are prepared to proceed on these lines and if so will you kindly indicate the flat numbers proposed to be selected for investigations.

117.  I think Mr Lui’s point was that the structural investigation was not a unilateral action taken by W&O on its own initiative but with the input or even at the request of the BA.

118.  But obviously no promise had been made at this stage that the BA would not take action to demolish the UBWs. By a letter dated 20 September 1984, the BA said:

I would be grateful if you could kindly indicate the flat proposed for investigation without further delay.

Please be advised that steps will be taken to employ the Government Contractor to enforce the statutory orders, hence your prompt attention to this matter would be much appreciated.

119.  Further communication with the BA took place. The correspondence was incomplete. But what transpired appears to be that three more UBWs had their slab opened for checking in 1985 and W&O reported to the BA that the “reinforcement exposed is the same as that shown on the plan (drawing no. Y-3030)”.

120.  It is not clear if at the end the total number of slabs checked was five or seven (as required by the BA). In any event, after the completion of the structural investigation, the BA eventually withdrew all the section 24 orders by letter dated 29 July 1986 (“Jul 1986 Letter”). Letters were issued to the flat owners directly:

2. It is noted that you amongst other owners of the Braemar Hill Mansions, have nominated Authorized Persons Mr. Leslie Ouyang to undertake an investigation regarding the structural aspects of the said extensions in Braemar Hill Mansions. The investigation has now been completed and the result shows that the relevant structural elements are satisfactory. Under these circumstances, I am writing to confirm that my Order No. C&E 10282/78 is hereby withdrawn.

3. Since the said extension of the above flat also appears to be in contravention of the lease conditions of L.L. 8398 s. A&RP., you are required to approach the District Lands Office direct with regard to lease conditions.

4. I must point out to you that the said extension of the above flat will continue to regarded as an illegal structure under the Buildings Ordinance and may be subject to enforcement action at some future date if circumstances so require it.

121.  By letter dated 8 December 1986, W&O, referring to an earlier letter which was not in the record, confirmed with the BA that 236 flats were investigated with the UBWs found to be safe. They also confirmed that three UBWs were demolished (supposedly because they were found to be unsafe). A list of the 236 flats enclosed in the letter was provided to the BA.

122.  As already mentioned above, not all the 236 flats had been served with a section 24 order. By letter dated 10 June 1987 (“Jun 1987 Letter”), the BA wrote to W&O:

2. Of the 22 flats not served with C&E Orders, it was noted that only Flat 25C does not have the drying space slabbed over. Should the owner propose to proceed with such work, he should be advised to make a formal submission through an Authorised Person.

3. With regards to the remaining 21 flats, enforcement action will not be taken in the foreseeable future, however, these slabbed over drying spaces are regarded as illegal and may be subject to enforcement action under the Building Ordinance at some future date if circumstances so require it.

123.  The Jul 1986 Letter and the Jun 1987 are the two other letters relied upon by the Tribunal (at §23) in coming to the conclusion that there was no representation or promise in support of the suggested legitimate expectation. The Tribunal emphasized the reference to the point that the structures would still be regarded as illegal and “may be subject to enforcement action at some future date if circumstances so require it.”

124.  Mr Lui said “if circumstances so require it” means that if or when the UBWs had become structurally unsafe. Mr Lui said, in view of the historical background, including the structural investigation which led to the withdrawal of the orders, it would be perfectly reasonable for the owners to read the Jul 1987 letter in this manner. Thus, those statements were perfectly compatible with the claimed legitimate expectation.

125.  Plainly that was not how the Tribunal read the Jul 1986 Letter or the Jun 1987 Letter. The BA, whilst promising it would not take action “in the foreseeable future” – without committing to a specific duration – had also clearly reserved the right to take action “at some future date”. On the face of it, the reservation was open ended without committing to a specific duration within which enforcement would not be taken.

126.  Therefore, though there is obviously some force in Mr Lui’s suggested reading, I am not persuaded that the Tribunal’s reading of those letters was perverse or irrational.

127.  At the oral hearing, I also explored with Mr Lui why it would be reasonable for flat owners whose UBWs were not amongst the 236 flats checked and confirmed by W&O to rely on what the BA said and did about those 236 flats. Plainly the negotiation from 1979 to 1986 only concerned those 236 flats, but excluded other flats which did not participate in the process or did not even have any UBW at the time. Whatever meaning one may attach to what the BA said or did in the negotiation process could only affect those 236 flats.

128.  I have addressed Mr Lui’s specific complaints related to the Tribunal’s reading of some of the letters. Mr Lui also launched some more general complaints. He said the Tribunal’s approach was confusing. He referred to the Tribunal’s remark at §20 which opens with “at the end, Mr Clayton SC is constrained to rely on the last sentence of §38 of the judgment of Magic Key, ie., there was no representation or promise made by the BA which the Appellants can point to in support of the alleged legitimate expectation.” He said somehow the Tribunal approached the factual analysis as subsidiary to and only addressed in the context of the legitimacy of the expectation as a matter of law in view of Magic Key.

129.  I think that risks unfairly reading too much into a single sentence. The Tribunal did analyse the facts and arrive at its own conclusion on whether there was a clear, unambiguous and unqualified representation or promise pointing in support of the Applicants’ claimed expectation. From the Determination, there is no suggestion that the analysis of the facts is somehow affected or constrained by the conclusion, based upon Magic Key, that such an expectation would in any event be unlawful and unreasonable. I accept the submission of Mr Liu that the Tribunal held that the general principles of legitimate expectation should apply, and then proceeded to determine the question of facts.

130.  At the hearing, Mr Lui also said the Tribunal’s reliance on Magic Key tainted its analysis on the facts, and the Tribunal analysed the facts in a cursory manner. It might be said that the factual analysis on whether the required representation or promise existed was relatively brief, but that is not of itself a public law error.

131.  Mr Lui also criticized the Tribunal in breaking down the legitimate expectation grounds into Ground 1A, 1B, 1C, and 1D, corresponding to the four phases as presented by Mr Clayton . Mr Lui said the historical events must be viewed holistically and assessed as a continuum rather than in a “fragmented” fashion. But, whilst the Tribunal analysed the events in the four phases, that does not mean the Tribunal had lost sight of the broader picture. Besides, Mr Lui was unable to point out how the Tribunal would have come to a different conclusion in regard to the meaning of the events it analysed under Ground 1A, 1B, 1C and 1D, if it had not taken the phased (or “fragmented”) approach.

132.  Mr Lui tried his best to read as consistent with the claimed legitimate expectation those statements which were relied on by the Tribunal as evidence otherwise. But even Mr Lui had, implicitly, to admit that the Dec 1983 Letter (quoted above) was inconsistent with the claimed legitimate expectation, and he had no choice but to condemn it as a change of stance on the BA’s part. In my view, it would be unfair to describe the BA’s words and conduct from 1979 to 1986 as a continuum of consistent representation pointing towards the claimed legitimate expectation. Indeed, there are far too many statements which blatantly deny and contradict such a legitimate expectation, including those statements relied upon by the Tribunal.

133.  Finally, Mr Lui also complained that the Tribunal, at §§27-28, referred to the change of policy from the 1975 Policy to the 1988 Policy which was erroneous because the genesis of the legitimate expectation doctrine is exactly to constrain the exercise of discretion under the pretext of change of policy, and it is incumbent on the public body to consider any legitimate expectation of the persons affected, yet the officers involved did not consider the history in the late 1970s and 1980s.

134.  The Tribunal’s analysis in §§26-28, was necessitated by Mr Clayton’s argument that the UBWs were liable to enforcement action under both the 1975 Policy and the 1988 Policy. Therefore, Mr Clayton argued, there was no change in circumstances and the BA should not issue the orders. The Tribunal already said at §27 that that was a new point which Mr Clayton was not permitted to raise. The analysis at §28 was only given on a “even if this point were allowed to be raised” basis.

135.  It may relevantly be noted that, as reflected in §§26-28 of the Determination and the transcripts, whilst Mr Clayton also read “as circumstances so require” as a referring to a change of circumstances, the change he had in mind differed from what Mr Lui submitted in this judicial review. In contrast, the Tribunal said “as circumstances so require” is not equivalent to “a change of circumstances”.

136.  The question whether the officers from the BA involved had properly taken into account the legitimate expectation would only come into play if such legitimate expectation has been found to be established. That is not the case.

F.4  Third phase: 1980 to 1983: negotiation with CLSO for modifying of lease (Ground 1B)

137.  Apparently around the same time when W&O sought the BA’s approval for the A&A plans, there was a parallel discussion with the CLSO regarding the modification of lease to cater for the extra GFA arising from the enclosure of the drying space. Only a few contemporaneous documents or correspondence have been preserved.

138.  In the last paragraph of the Nov 1979 Letters issued by BA, it said:

6. The Crown Lands & Survey Office is currently considering your case under the provision of Special Condition No.4 of the Particulars and Conditions of Exchange regarding the permissible gross floor area.

139.  By a letter dated 24 November 1980 issued by the CLSO to W&O, the CLSO offered to recommend the modification of lease on the conditions that (a) each flat owner shall make an application; (b) structural approval must have been obtained from the BA; and (c) a premium is paid. It is clear that the offer was not only to those who wished to enclose the drying space in the future but also to those who had already had the drying space enclosed. The premia were set to cater for both situations:

Where no alteration of works have been done at present

- 158 flats in T Block: HK$14,300

- 30 flats in Y Block: HK$14,800, HK$15,200 or HK$23,000 depending on the size of the enclosed drying area

Where the alteration works have already been carried out in contravention of the Lease conditions:

- T Block: HK$26,000

- Y Block: HK$26,800, HK$27,600 or HK$42,800

…

I should at this stage make it clear that where the work has been done and no application for a modification is made I shall recommend that Lease enforcement action is taken against the flat owners concerned.

140.  By letter dated 8 January 1981, the CLSO again said that:

All those who have or wish to carry out these works must apply before 1^st April 1981 or demolish the illegal structures.

141.  Apparently, the premia were not paid before the set deadline. By letter dated 24 August 1983, the DLO said:

I have consulted the relevant government departments regarding the satisfaction of the criteria as set out in Chief Estate Surveyor, Property Management/Modification’s letter dated 5 June 1981 and am pleased to advise you that I am now able to proceed with the modification in respect of the flats as shown on the attached list. This basically follows your suggested list with the exception of No. 33-2B where the owner has not obtained the approval from the Building Authority and is advised to do so immediately.

In view of the additional floor area being in excess of that permitted under the lease, a premium to be assessed at a rate of HK$8,200/m will be charged to all modification. This accords with your previous suggestion of a single premium rate. This would mean a premium ranging from HK$12,000 to HK$21,000 depending on the actual size of the individual flats. In addition, an administrative fee will be payable in each case.

142.  Eventually for reasons unknown, the CLSO or the DLO’s option was not taken. The premia were not paid and the leases were not modified. But Mr Clayton emphasized that the land authority only made the offer after having consulted the BA and being satisfied that the BA had approved the building plans. Mr Lui said what transpired in that period was a joint effort amongst different government departments.

143.  The Tribunal dismissed this series of events on the basis that the premia were not in the end paid. Mr Lui said the correspondence showed that the CLSO had consulted the BA. Be that as it may, the CLSO which was not the enforcing organ in charge of the BO would be in no position in making any representation regarding the effects of section 14 or 24. In my view, the Tribunal was entitled to accord the correspondence with the CLSO with no or minimal weight.

F.5  Fourth phase: the 1993 Decision

144.  In 1991, two other flat owners were served with a section 24 order requiring demolition of their UBWs. The two UBWs were newly built or were in the process of construction at the time. The owners appealed to the Tribunal based on a similarly formulated legitimate expectation as in the present case, and their appeals were allowed.

145.  The starting position is that, of course, insofar as the legal analysis is concerned, this Court is not bound by a decision of the Tribunal. But it can be seen how the 1993 Decision has been deployed and used by the Applicants.

146.  Before the Tribunal, Mr Clayton set out the 1993 Decision as part of the historical background giving rise to the legitimate expectation. Mr Lui, at some point during the oral hearing, said that people had relied upon that decision over the years. The BA lost in that litigation and did not seek judicial review against it.

147.  But the 1993 Decision was not something said by the BA, nor could its conduct of the litigation be seen as conduct giving rise to the representation or promise as claimed by the Applicants. Besides, the BA’s position taken in the 1993 litigation was indeed the same as here and now, namely that the owners were not entitled to claim legitimate expectation.

148.  Although I am not bound by the 1993 Decision, it may be worthwhile to set out its reasoning in finding in favour of the owners that there was a legitimate expectation. I have broadly set out above the approach of the Tribunal in those appeals, but in particular at §§11-13 the Tribunal stated:

11. We have based our view that these appeals must be allowed for the following reasons:

(a) What has happened in Braemar Hill Mansions is unique. The same illegal works are present in nearly 50% of the flats there. In addition, most of the illegal works have been tolerated by the Building Authority, at least for now. It is not without significance that action was taken by the Building Authority at one stage to have these illegal structures removed and then following certification that they were structurally safe, the structures were allowed to remain. Of course, the official line was that the Building Authority did not (and could not as a matter of law) recognize that these structures were legal and the right to take enforcement action in the future was reserved. The above is a combination of events that is unique and perhaps unlikely to occur again.

(b) So what position did the appellants find themselves? We are of the view that in the circumstances referred to above, they must have been entitled to think that the enclosure of the utilities areas in flats was something that was tolerated by the Building Authority. After all, they could see for themselves just how extensive these structures were in Braemar Hill Mansions.

(c) Furthermore, an element of basic fairness arises in the present appeals. It would be unfair (and perceived to be so by the average citizen) that the appellants be required to demolish the illegal works in their flats while no action is taken for so many other flats in Braemar Hill Mansions. The actions (or really lack of enforcement action) on the part of the Building Authority in the past in relation to the other flats leads one reasonably to conclude that there is toleration of these illegal works, at least for the time being. We do not think it is sufficient convincing on this occasion to refer to the fact that the Building Authority only really acts when complaints are made and unless complaints are made, no action is taken and this is by reason of the shortage of manpower within the Building Authority.

(d) There is of course no question of the appellants being “singled out” but it does strike us as being somewhat unfair in the circumstances if they are required to demolish while the rest of Braemar Hill Mansions (or the most of the other flats) are unaffected.

(e) There is nothing wrong with the Building Authority’s 1988 Policy and many demolition orders have been issued (and upheld by this Tribunal) on the basis of that policy. It is just that in the unique position of Braemar Hill Mansions that we feel it is not right to allow the decision of the Building Authority to stand on this occasion.

12. We have emphasized the uniqueness of these appeals in case anyone would think that this Decision sets any sort of precedent.

13. In the event, as we have said, these appeals are allowed from the relevant decisions of the Building Authority that we have referred to above. The relevant works of course remain illegal (this Tribunal has no power to legalize illegal works), but it is just that the appellants now find themselves in the same position as the other flats in Braemar Hill Mansions which are, for now, tolerated. Whether they will be subject to enforcement action in the future along with the others is something unnecessary for this Tribunal to form a view on at this stage.

149.  Naturally, the parties would focus on different parts of the decision. Mr Lui focused on §§11(a)–(b) which may give the impression that a legitimate expectation arose from the negotiation with the BA from 1979 to 1986, and from the prevalence of UBWs in the Estate.

150.  Mr Liu focused on §§11(c)–(e), 12 and 13, which indicated that the unfairness arose from the apparent selective enforcement against the two flat owners but not everyone else who also had the same UBWs, and the legitimate expectation the appellants had was to be put on the same footing as everyone else whose UBWs had been tolerated by the BA so far. Those passages might also imply that such unfairness could be eradicated if enforcement action were to be taken against all flats with UBWs in one go. The Tribunal also explicitly said that its decision should not set any precedent.

151.  I tend to agree that the true ratio of the 1993 Decision was – or at least included – that the unfairness to the appellants arose in that case from the legitimate expectation that they would be treated in the same way as other owners with the same or similar UBWs were treated, and that they should not be treated differently, where so many others’ UBWs seemed to be tolerated at least for the time being.

152.  In any event, as said above, this Court is not bound by the Tribunal’s 1993 Decision. Nor was the Tribunal in 2022 bound by a decision made on at least partially differing facts almost 30 years earlier. The circumstances described as being “unique” in 1993 are obviously not the same circumstances as existed in 2022. Even if Mr Lui is correct in saying that all the owners had relied on the expectation arising, that cannot apply to the UBWs already in existence before the 1993 Decision, and in any event it is not the number of people who hold any particular expectation which makes that expectation legitimate or reasonable.

153.  But I would also note this: it would be dangerous to read the 1993 Decision as suggesting that if unauthorized structures built in contravention of section 14 are common, then someone else could also build his own unauthorized structure with the legitimate expectation that his violation of section 14 would be tolerated. I have no doubt that the Tribunal did not mean for its 1993 Decision to be taken as any sort of encouragement – let alone the issuing of a ‘carte blanche’ – for the UBWs at the Estate to double from 47% in around 1993 to 95% in around 2018.

154.  Even if the Perversity Ground is reasonably arguable, it does not succeed on substantive review.

G.  Conclusion

155.  As stated, I dealt with this at a rolled-up hearing. Though I think the grounds of review put forward met the arguability threshold as would justify the grant of leave to apply for judicial review, on substantive review the application is dismissed.

156.  I see no reason why costs should not follow the event. Therefore, I order the Applicants to pay the BA’s costs, to be taxed if not agreed.