HKSAR v. TSE YEE PING

HCMA 694/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 694 OF 2014

(ON APPEAL FROM STS 10681/2013)

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D E C I S I O N

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1.  This is an application for a certificate that the decision in the case involved points of law of great and general importance.

2.  Despite the trial, the appeal hearing[1] and this application hearing were all conducted in local language, I prepare the Decision in English as parties were in consensus that it is convenient and desirable to do so.

BACKGROUND

3.  On 24 October 2014, the Applicant was found guilty by a Magistrate after trial of the offence of “Failing to comply with an order of the Buildings Authority without reasonable excuse”[2].

4.  He appealed against the conviction.  On 15 June 2015, I dismissed the appeal.

THE APPLICATION

5.  By a Notice of Motion dated 7 July 2015, the Applicant applied under section 32(2) of the Hong Kong Court of Final Appeal Ordinance[3] for a certificate that points of law of great and general importance were involved in the decision.

THE POINTS OF LAW

6.  The points of law which the Applicant asked this Court to certify are :

(1)     In respect of village-type houses built and completed in the New Territories prior to 16 October 1987 (when the Buildings Ordinance (Application to the New Territories) Ordinance, Cap. 121, came into effect) pursuant to the then “Small House Policy” of the government, whether the term “building works connected with a building” within the meaning of Regulation 3(1)(b) of the Buildings Ordinance (Application to the New Territories) Regulations, Cap. 322, includes works for the erection and completion of a canopy (supported by a system of pipes) built and erected on the roof of a village-type house to be used as part of the house upon its completion.

(2)     Whether the terms :

(a)     “building works” within the meaning of Regulation 3(1)(b) of the Buildings Ordinance (Application to the New Territories) Regulations for the purpose of excluding application of, inter alia, sections 14 and 24 of the Buildings Ordinance (Application to the New Territories) Ordinance, Cap. 322, from control of village-type houses; and “building works” within the meaning of sections 2, 14 and 24 of the Buildings Ordinance, Cap. 123, for the purpose of the control of works on buildings carry different meaning.

RELEVANT ISSUES  IN THE APPEAL

7.  The case concerns the Applicant’s non-compliance with an order issued by the Building Authority requiring him to remove a canopy erected on the roof top of his building which is located in the New Territories.  

8.  Decision in the appeal was made on the factual basis that erecting of the canopy had been completed before 16 October 1987 when the Buildings Ordinance (Application to the New Territories) Ordinance (called the New NT Ordinance in my judgment) came into force.  It was the submission of Mr K M Chong, who appeared together with Mr Darren Poon for the Applicant both for the present application as well as the appeal, that the date has significance in that prior to it there was no concept of “unauthorized building works” in the New Territories applicable to village-type houses.  The regulatory provisions of the Buildings Ordinance only became applicable in the New Territories by virtue of the New NT Ordinance.  As the village house was built in 1985, the law as provided in the Buildings Ordinance (Application to the New Territories) Regulations, Cap. 322, (called the Old NT Regulations in the judgment) which were later repealed is relevant.

9.  In making my decision, relevant legislative provisions then in force were examined.

10.  As at 1985, when the house of the Applicant was built, certain regulatory provisions in the Buildings Ordinance then in force were not applicable in the New Territories by virtue of regulation 3 (1) of the Old NT Regulations.

11.  Those regulatory provisions include sections 14 and 24 of the Buildings Ordinance which are relevant to the present case.

12.  Regulation 3(1)(b) of the Old NT Regulations provides that the regulatory provisions :

“shall not apply to building works for the alteration of or which are otherwise connected with a building which is, or will when such works have been carried out, be a building to which this regulation applies.”

13.  Erecting of the canopy was obviously not for the alteration of the building.  I found that it was also not “building works connected with the building”.  It follows that the exclusion provision of regulation 3(1)(b) in the Old NT Regulations was not applicable.  As a result, the regulatory provisions of the Building Ordinance then in force were applicable to the case.

14.  On this basis, I found that in erecting the canopy the regulatory provisions were breached and the Building Authority was entitled to issue the order with which the Applicant failed to comply without reasonable excuse.

SUBMISSION

15.  Mr Chong put up the following points in submission :

(1) Many people are living in “village type houses” erected pursuant to the Small House Policy.  Many canopies had been erected on these houses prior to 16 October 1987;

(2) These people have interest in the meaning of “building works” for the purpose of exemption from application of the Buildings Ordinance and / or control under sections 2, 12 and 24 of the Buildings Ordinance;

(3) These people expect the definition of “building works” be construed consistently within the same statutory framework, i.e. ordinances regulating buildings.

16.  Counsel for the Respondent, Ms Mickey Fung, SPP, made the following submission :

(1) The first question is very much fact specific and has no general application.  It does not assist in assessing whether other building works which are not of the same description are building works connected with a building or not;

(2) The phrase “connected with” is simple English and whether a building works is connected with a building is a question of facts to be decided on evidence.

(3) Even if the decision did involve a point of law, it is not one of great and general importance as the case was decided upon the factual basis that the canopy was erected in, which was almost 30 years ago. There is no evidence that existence structures of such nature and age is still common.

(4) As regards the second question, the important question is not whether “building works” in the Buildings Ordinance (Application to the New Territories) Regulations for the purpose of exclusion bears the same meaning or not with “building works” in the Buildings Ordinance for the purpose of control.  The crust of the decision was whether the building works were in connection with the building, not whether they were building works.

17.  In reply, Mr Chong submitted that recent implementation of the Reporting Scheme for Unauthorised Building Works by the government is indicative of the extensiveness of the problem in the New Territories.  He also pointed out that there had been no decided case on the points.

CONSIDERATION

18.  Had it been a trial by jury, whether the canopy was “building works connected with the building” is a matter to be decided by the jury.  I have considered even so whether a point of law was involved in the decision, having regard to submission by parties. 

19.  It was the submission of Ms Fung that no point of law was involved as the plain and natural meaning of the words was applied in the decision process.

20.  It was my ruling that although the canopy is physically connected to the building, it is not building works connected with the building.  In my judgment, “building works connected with the building” connotes connection for reason or for purpose.  To be “building works connected with the building”, it has to be of such a nature and a degree of importance that it plays a role to make the building fit for the purpose it is built.  Otherwise, the legislature could have simply adopted the wordings “building works connected to the building”.

21.  In my judgment, whether the canopy was in the circumstances “building works connected with the building” involved not merely a finding of fact.   Judicial exegesis was involved.

22.  The next question is : is it a point of law of great and general importance?  In consideration I have had regard to submission of parties but there was no statistics before me.

23.  I am satisfied that how “building works connected with the building” is to be interpreted is a point of law which has the quality of importance that a certificate should be issued.  I therefore certify the first question.

24.  As regards the second question, I do not think a certificate should be issued.

25.  Whether “building works” in the two statutory provisions bears the same meaning was not a matter which this Court had to decide for the appeal.  Indeed, Mr Chong accepted that there was no dispute on the finding that the canopy was “building works”.  However, it was his submission that as both statutory provisions which this Court had to consider concern “building works”, be it building works to be governed by the regulatory provisions or “building works” to be excluded, a finding whether the canopy was “building works” was involved.  This finding involved ascertaining the meaning of “building works”.  He further submitted that the provision in section 32(2) of the Hong Kong Court of Final Appeal Ordinance does not require the issue to be determinative in the decision, it only required the issue to have been involved in the decision.

26.  Firstly, I am inclined to think the provision in section 32(2) of the Hong Kong Court of Final Appeal Ordinance does not cover an issue which was not in dispute in the case even though technically a finding has to be made on the issue for the sake of completeness.  The basis of the decision was that the canopy was not “building works connected with the building”, it did not turn on whether or not the canopy was “building works”. The decision did not involve the point raised in the second question.

27.  Secondly, and more importantly, I am of the view that the answer to the second question is obvious in the provisions. 

28.  No definition of “building works” was provided in the Old NT Regulations.  It was also not expressly provided in the enabling Ordinance[4] but it was provided in the Ordinance that :

“On the commencement of this Ordinance, the principal Ordinance shall apply, subject to the provisions in this Ordinance, in the New Territories.”[5]

Principal Ordinance was defined to mean the Buildings Ordinance.[6] It follows that “building works” in these provisions bear the same meaning.

CONCLUSION

29.  I therefore certify the first question as stated in paragraph 6 above as being a point of law of great and general importance involved in the decision but refuse to certify the second question.

[1] Judgment was prepared in English, which was also the consensus of parties.

[2] Contrary to section 40(1BA) of the Buildings Ordinance, Cap. 123, Laws of Hong Kong.

[3] Cap. 484, Laws of Hong Kong.

[4] Building Ordinance (Application to the New Territories), Cap. 322, Laws of Hong Kong, which came into effect on 1 January 1961, and is now repealed.

[5] Section 3 of the Ordinance.

[6] Section 2 of the Ordinance.