YETONCE LTD. v. THE ATTORNEY GENERAL AND ANOTHER

(Added by Order of
Hon. Liu, J. Dated 6th January 1992)

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R U L I N G

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1. The applicant is the registered owner of the ground floor of 475, King's Road. By an Order of the Building Authority and what has been described as a directive of the Director of Buildings and Lands issued on 20th December 1989, demolition was requested of certain works in the yard of the premises, said to have been extended onto the adjoining pavement.

2. The applicant felt dissatisfied with the Order/directive and took it to the Appeal Tribunal under section 44(1) of the Buildings Ordinance. The procedure of appeal is regulated by the Schedule. As explicitly provided in paragraph 1 of the Schedule to s.44, the applicant was to state "the substance of the matter relating to (its) appeal". The Appeal Tribunal called a preliminary meeting in early June. Grounds had been given by the applicant, through its solicitors, as early as 8th January 1990 in a letter of even date to the Building Ordinance Office at pages 105 to 107 of the comparatively smaller bundle in these proceedings. It is worthy of note that reference was made in this letter to the Schedule to s.44, under which the applicant was exercising its right to appeal. Further grounds were to come; so it was intimated at the end of that letter of the applicant's solicitors dated 8th January 1990. Further grounds were indeed furnished, but only after a reminder from the authorities. They appear at pages 130 and 131 of the small bundle. Reference having been made to the Schedule, the applicant's appeal was evidently prosecuted under paragraph 1 of that Schedule. Paragraph 1(1) of the Schedule to s.44 provides, as I have said, that an applicant on appeal shall state "the substance of the matter relating to his appeal".

3. The main thrust of the request of the authorities was for the removal of some structures including corrugated metal sheet roofs which are admitted by the applicant to have been raised to a new level, said to be "not very much increased in height".

4. In these proceedings, the existing grounds on which relief is sought, as they have been rightly pointed out by Mr Andrews, mirror the "substance of the matter" relating to the applicant's appeal. No attempt had been made to modify or amend these grounds, reiterating the "substance of the matter" before the Appeal Tribunal, until leave was sought to read the applicant's director's further affirmation. The application for the introduction of these green amendments is certainly late and, what one might say, indirectly motivated. But, these are not matters which provide the real justification for the action I am about to take.

5. The Appeal Tribunal has refused to hold an inquiry. It is the case of the applicant that such a refusal is wrong and that for the purpose of judicial review, the error lies in the Appeal Tribunai's "due consideration" (or the lack of it), under paragraph 2 of the Schedule to s.44 of the Buildings Ordinance, of the "substance of the matter relating to (its) appeal" as presented under paragraph 1.

6. It is trite law in judicial review that it is the process by which that refusal was arrived at and not the refusal itself which is sought to be questioned. The Appeal Tribunal was seized with no other case than the one mounted for their deliberation. The Appeal Tribunal may admittedly have a paper hearing. It is not suggested that the applicant itself ever failed or neglected to state fully the "substance of the mattr" relating to its appeal. Procedural and mental process of the Appeal Tribunal, as a statutory body, must be confined to and exclusively guided by the "substance of the matter" so submitted. That is precisely what is laid down in the Schedule to s.44. There is a need for the issues before this Court to be similarly contained. Any other matters, the substance of which has not been placed before the Appeal Tribunal, cannot be relevant in the proceedings before me today.

7. It is submitted by counsel for the applicant that (i) in the proposed green amendments serves merely, as a clarification Insofar as it is said to be a clarification of and not a departure from the "substance of the matter" relating to the applicant's appeal, no amendment would be necessary. Paragraphs 5 to H of (iv) are repetitions of what had been brought to the notice of the Appeal Tribunal. Such repetition, so Mr Andrews has submitted and I accept, is also quite unnecessary Almost all the proposed amendments are therefore useless or redundant.

8. The application to make the proposed green amendments is an attempt to introduce contended matters of substance not presented to the Appeal Tribunal under paragraph 1(1) of the Schedule. In my view, none of the proposed amendments in green should be allowed. But subject to what I have said, I propose to accept the amendment suggested in (v). The application is, except for (v) with the limitation I have put on it, refused.

9. Consequential upon my ruling on the applicant's application to introduce the proposed green amendments, Mr Neoh invites me to rule specifically upon his intended reading of the second affirmation of Madam Lee, a director of the applicant. Mr Andrews has objected to the substance of paragraphs 6 to 14 of Madam Lee's second affirmation. The ambit and merits of his objections were fully canvassed yesterday. Mr Neoh confirms that without paragraphs 6 to 14, the second affirmation of Madam Lee would be of no assistance to the applicant. In the light of my ruling, I would not permit Mr Neoh to read the second affirmation of the applicant's director, which was filed without leave on 7th May 1991.