TONG WUN YING POLLY v. APPEAL TRIBUNAL (BUILDINGS) AND ANOTHER

HCAL 225/2021

[2021] HKCFI 2119

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 225 OF 2021

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DECISION

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Introduction

1.  This is the inter‑partes oral hearing[1] of the application by the applicant (the “Applicant”) for leave to apply for judicial review against 2 decisions made by the Appeal Tribunal (Buildings) (the “Tribunal”) on 11 November 2016 (the “1^st Decision”) and 9 November 2017 (the “2^nd Decision”).  The Building Authority (“BA”) is the 2^nd putative respondent.

2.  The Applicant appeared in person.  Mr Martin Kok together with Mr Felix Tang appeared for the BA.

Application to file further affirmation

3.  On the morning of the hearing, the Applicant was late to court.  She explained that she had been held up by the process of swearing a further affirmation.  A copy of her new affidavit was then produced to this Court.  No copy was however or available or provided to Mr Kok until about 10:45am. Much hearing time was wasted.

4.  The Applicant explained that the new affidavit was prompted by criticism made by Mr Kok in his written affirmation on her failure to make full and frank disclosure.  In particular, at §51 thereof, she claims that “DOJ is accusing me of lack of full and frank disclosure.  And that I have to prepare this long affidavit to defend myself…”.

5.  No such criticism has been made.  The criticisms go to the lateness in which the present application is made, and the fact that the Applicant has previously unsuccessfully sought leave to apply for judicial review in relation to the same matter (see below).

6.  The time permitted by the directions given by Chow J has lapsed, and no further affirmation is permissible unless with leave of the court.

7.  Having heard the parties, I dismissed the Applicant’s application to file and rely on her new affidavit.  The gist of the reasons I gave, I record now, were that (1) the application was made late on the morning of the hearing; (2) out of the total of 52 paragraphs contained in the affirmation, 49 relate to events that took place before the Applicant’s affirmation in reply filed on 17 June 2021, which events if relevant should and ought to have been dealt with in that affirmation, and (3) the other 3 paragraphs are of little relevance.

Background

8.  Po Hing Mansion (the “Building”) is at Po Hing Fong between Po Yan Street and Wa Ning Lane.

9.  The occupation permit of the Building was issued on 30 December 1965.

10.  The Building is a target building under a large‑scale operation called Blitz UBWs Clearance 2001 for removal of unauthorized building works.

11.  Two removal orders (the “Previous Orders”) relating to certain unauthorized building works at Flat 8V of the Building (the “Subject Premises”) had previously been issued in 2002 and 2004.

12.  The Applicant became the registered owner of the Subject Premises on 1 December 2010.

13.  Between May 2011 and June 2012, several inspections were conducted by the Buildings Department (“BD”) on the Subject Premises.

14.  On 25 July 2012, a building order (the “Building Order”) was issued to the Applicant as owner of the Subject Premises.  It was issued under section 24(1) of the Buildings Ordinance, Cap 123.  The Previous Orders were substituted thereby.  The alleged unauthorized building works the Building Order relates to are described as “1 structure on another 1 structure below facing Po Yan Street”.  The Applicant is ordered to demolish the said building works, and to “reinstate the parts of the building so affected by the building works under item (i) above in accordance with the plans approved by the Building Authority”.

The appeal, and the hearings

15.  On 13 August 2012, the Applicant appealed against the Building Order.

16.  On 8 September 2016, a preliminary hearing was held by the Tribunal. Amongst others, the Applicant requested the Tribunal to carry out a site inspection.  By reasons contained in its written Decision of 11 November 2016 (the “11/11/2016 Written Decision”), the application was refused (ie the 1^st Decision).

17.  A number of further preliminary hearings were subsequently held.  By its written decision of 9 November 2017 (the “9/11/2017 Written Decision”), the Tribunal ruled that no good cause had been shown for holding a full hearing, and dismissed the Applicant’s appeal (ie the 2^nd Decision).

The Applicant’s applications for leave to apply for judicial review, and the delay

18.  This is not the first time the Applicant seeks to challenge the decision of the Tribunal in respect of the Building Order.

19.  By Form 86 dated 8 February 2018, the Applicant sought leave to apply for judicial review against the 2^nd Decision of the Tribunal.  No ground in support was however stated, and no affidavit in support had been filed.  For those reasons, the application was dismissed by Chow J on 12 February 2018[2].

20.  The Applicant has not sought to appeal against that decision.

21.  After the dismissal of the Applicant’s said application, and upon her failure to comply with the Building Order, the BD instituted prosecution against her.  She was due and required to appear before a Magistrate for plea on 25 February 2021.

22.  Then, one day before that, by the instant Form 86 dated 24 February 2021, the Applicant made the present application for leave to apply for judicial review against the 1^st and 2^nd Decisions.

23.  In the instant Form 86, the Applicant does not mention her earlier failed attempt in seeking leave, and fails to explain why she deems it appropriate to renew her application in the manner as she has.

24.  The instant Form 86 was only taken out some 4 years 3 months after the 1^st Decision, and 3 years 3 months after the 2^nd Decision, well after the lapse of the 3‑month period set out in Order 53 rule 4, Rules of the High Court.

25.  An application for leave to apply for judicial review must be made promptly, and in any event within 3 months from the date when grounds for an application first arose — Order 53, rule 4(1).

26.  Where there has been delay in applying for leave to apply for judicial review, the court in deciding whether to grant any extension of time should take into account the following non‑exhaustive list of factors: (i) length of delay, (ii) explanation for the delay, (iii) merits of the substantive application, (iv) prejudice, and (v) whether any question of general public importance is raised in the application — The Incorporated Owners of Tak Fan Lau v The Building Authority [2021] HKCFI 902 at §31.

27.  The delay in the present case has been very substantial.  As stated by the Court of Appeal in AW v Director of Immigration [2016] 2 HKC 393, at §27(3)(iii), “[w]here an applicant is many months out of time, leave may be refused ‘however strong the complaint might otherwise be’… An Applicant who sleeps upon his rights may be barred from pursuing them in judicial review even though he may have a meritorious case”.

28.  In the instant Form 86, the only purported reasons the Applicant has given for the delay are as follows:

“ I am not a legal professional nor a professional in the construction industry. Only until RECENTLY, I was enlightened by advice to read the documents. Then I realized that BA may have interpreted incorrectly the Building Ordinance 1955 and the then practice. The absence of Form 14 dated 6^th October, 1954 is a crucial evidence to prove that BA have wrongly accused me that my balcony is illegal. I was unfairly treated or biased by the Chairman of the Appeal Tribunal. As such, I hope I would be granted leave application for judicial review.”

29.  Those alleged reasons lack particulars and specificity.  The Applicant has failed to provide any detail on the nature of the “advice” which she has allegedly been provided, or even the time when she received it.

30.  Further, as submitted by Mr Kok which I accept, much of the arguments which the Applicant seeks to raise in relation to the Buildings Ordinance 1955 have been raised by her before the Tribunal.

31.  In my view, no good reason for the very substantial delay have been shown.

32.  The substantial delay is detrimental to good administration.  Removal of unauthorized building works has been substantial delayed thereby.  The prosecution proceedings which the BD has brought against the Applicant has further to be adjourned as a result.

33.  No question of general public importance has been raised.

34.  In my view, for the above reasons alone, the application is liable to be dismissed.

35.  In any event, and for the reasons set out below, the Applicant’s application is in any event not reasonably arguable, and has no prospect of success.

Judicial review not being another appeal

36.  Before considering the Applicant’s grounds set out in the Form 86 and her very lengthy affirmation in support, I remind myself that this court does not sit as an appeal court.  As observed by Kwan JA (as she then was) in Blendoran Ltd v Appeal Tribunal (Buildings) CACV 196/2016 (20 October 2017):

“7. In an application for judicial review, the court will not substitute its own view of the facts with those of the tribunal to whom the legislature has entrusted the fact‑finding power, except where it is obvious that the finding of the tribunal is perverse (R v Hillingdon London Borough Council ex p Puhlhofer [1986] 1 AC 484 at 518E).

8. The judge hearing the application for judicial review against a determination of the Tribunal does not sit as an appeal court.  It does not evaluate the strengths and weakness of the evidence.  The assessment of the evidence and the weighing of relevant considerations are matters for the Tribunal, which is a specialist professional body.  If the determination of the Tribunal is correct in law, it is only on the basis of Wednesbury unreasonableness that the court may interfere with the Tribunal’s determination (Building Authority v Appeal Tribunal (Buildings) & Estoree Limited, HCAL 147/2002, 25 July 2003, Hartmann J, at §58).”

The ground relating to the 1^st Decision

37.  The 1^st Decision concerns the Tribunals’ refusal to have a site inspection.  The Applicant does not agree to the same.  The 1^st Ground framed by the Applicant in respect of the 1^st Decision goes as follows.  She claims that the 1^st Decision “made the members of the panel unable to understand the subject premises and the environment”, and that as a result, “the Chairman and one of the members, Mr Chu, made wrong judgment during the Preliminary Hearings”.

38.  I have considered the reasons for the 1^st Decision as set out in the 11/11/2016 Written Decision.  The Tribunal was of the view that the materials provided by the parties had clearly and reasonably demonstrated the state of the unauthorized building works, and that a site inspection was not necessary (§11 thereof).

39.  That was a decision which the Tribunal was plainly entitled to make on the materials before it, which in my view is also a reasonable one.

40.  The Applicant claims that the BA has erred in its understanding of the Building Order.  She relies heavily on the BA’s illustration of the unauthorized building works on a photograph taken during an inspection on 20 May 2011[3].

41.  That photograph however ought not to be considered in isolation.  As confirmed by Mr Kok in the course of the hearing, that photograph only gives an approximate indication of where the unauthorized building works were. When considered together with the various floor plans[4] which are before the Tribunal, and the contents of the Building Order themselves (that the reinstatement should be carried out “in accordance with the plans approved by the Building Authority”), the delineation of the unauthorized building works is in my view clear.

42.  In fact, the location of the unauthorized building works had been identified repeatedly by the BA in the course of hearings before the Tribunal — see eg the written submissions of the BA of 16 May 2016 at §2(h)[5] and the transcript of the hearing on 10 July 2017 at p 47M‑Q[6].  Consistent with those identifications, Mr Kok further in the course of this hearing and upon this court’s invitation identified on record, with reference to the floor plans at [B2/459, 460, 462 and 463], where the unauthorized building works are.  There has been no error in that regard.  

43.  Relevant to this ground the Applicant also seeks to rely on an earlier appeal in relation to the unauthorized building works at unit 8Q of the Building. That case had been before another tribunal, and turned on the considerations as to whether the issue of the building order concerned was consistent with the prevailing policy, and whether its issue was reasonable or fair (§15 of the relevant decision[7]). The Tribunal has taken into account the special features of that case; it has also taken into account the prevailing policy as applicable to the Building Order[8]. I remind myself that this Court does not sit as an appeal court.  The decision which the Tribunal has made is one which it as a specialist professional body is entitled to make.  No arguable ground for judicial review has been made out.

44.  The 1^st Ground is in my view not reasonably arguable.  

45.  I record that in the course of this hearing, the Applicant said that she also meant to seek leave to challenge the Tribunal’s decision on disclosure of documents also dealt with in the 11/11/2016 Written Decision.  That is not what the Applicant has stated in her Form 86.  Nor has the Applicant demonstrated that that decision is wrong in law or Wednesbury unreasonable.  The nature of the decision is also procedural in nature such that the court would not generally entertain an application for judicial review — see Wong Ho Ching v The Appeal Tribunal (Buildings Ordinance) [2020] HKCFI 2738, at §58.  The Applicant did not make any application to amend her Form 86 to include this ground.  Even if she had, I would have refused it.

The grounds relating to the Buildings Ordinance 1955

46.  The applicability of the Buildings Ordinance 1955 (“BO 1955”) forms the core of the 2^nd and 5^th Grounds which the Applicant relies on.

47.  The crux of the Applicant’s arguments is that given the reference of the BO 1955 in various prescribed forms, “the erection of the subject building should be in compliance of Buildings Ordinance 1955, instead of Buildings Ordinance 1959 as suggested by Building Authority”[9].

48.  To start with, it has to be noted that there is no “Building Ordinance 1959”.  There was only the Buildings (Amendment) Ordinance, 1959 (the “B(A)O 1959”).

49.  B(A)O 1959 amended certain provisions of BO 1955.  Despite those amendments, the “principal Ordinance” remained BO 1955, which was referred to as such[10].

50.  Relevantly, section 4 of the B(A)O 1959 repealed and replaced section 9 of the BO 1955.  The effects of that amendment have been explained by Chow J in Magic Key Ltd & Ors v Appeal Tribunal (Buildings) & Anor [2020] 6 HKC 678 at §33 as follows:

“ … under the [BO 1955], it was possible for the BA to give his relevant consent or approval to the commencement of building works by conduct which, depending on the evidence, might be evidenced by the issue of an occupation permit. However, this was no longer possible under the [B(A)O 1959], which prescribed that the relevant consent or approval could only be given through the approval of plans. The same position applies under the current Buildings Ordinance.”

51.  B(A)O 1959 came into operation on 1 January 1960.

52.  The Applicant’s case is that even after the B(A)O 1959 had come into operation, but in the light of the continuous reference to BO 1955 in various prescribed forms, and given the time when the Building was constructed, BO 1955 and the practice prevailing under it remained in force.  She also relies on section 8(1)(j) of the Building (Administration) Regulations 1959.

53.  I do not accept the Applicant’s arguments in this regard.

54.  As I have observed above, despite the B(A)O 1959, the BO 1955 remained the principal ordinance.  Further, the prescribed forms concerned were required under Regulations 33(1) and 45 of the Buildings (Administration) Regulations 1959 and the Schedule thereof, which scheduled forms made references to the BO 1955.

55.  According to §8 of the affirmation of Mr Yeung Pak Shing (Senior Building Surveyor (Atg) in Existing Buildings Division 1 of the BD) filed in opposition (“Mr Yeung’s Aff”):

“ According to the records of BD, the Occupation Permit of the Building was issued on 30 December 1965. The latest amended building plans of 7/F–8/F was approved on 30 December 1965, and the relevant approved section plan (Section ‘A’‑‘A’) was approved on 6 February 1965. There is no record of alteration and addition works for the subject premises after issuance of the Occupation Permit. I refer to the latest approved plans of the subject premises … which did not indicate the subject UBW.”

56.  Given the operation of the B(A)O 1959, the manner in which BO 1955 was amended, reasons for the continuous reference to the BO 1955 in the prescribed forms, the time when the Building was constructed and the relevant plans submitted, and the contents of those plans, I accept Mr Kok’s submissions that the Tribunal was plainly correct in deciding that “建築工程的合法性一般均以監督批准的圖則為準。該工程沒有顯示在該樓宇最後批准的圖則上，此表示該工程並沒有獲得監督的批准與同意。...由於該工程並沒有取得《建築物條例》第14(1)條所訂明的批准與同意，因此該工程為違例工程。”[11]. 

57.  The 2^nd and 5^th Grounds are not reasonably arguable, and have no realistic prospect of success. 

The 3^rd Ground

58.  The Applicant relies as a ground that the Tribunal has omitted to deal with her arguments on the continuous applicability of BO 1955.

59.  I have considered the relevant legal principles as have been explained by Chow J in Wei Linghui v Hong Kong Federation of Insurers Agents Registration Board [2019] 4 HKLRD 387 at §29.  I accept Mr Kok’s submissions that the Tribunal has addressed the substantial issues before it. Its conclusions (at §§15 and 17) that the BA’s relevant consent or approval could only have been given through the approval of plans are correct. 

60.  I have concluded that the Applicant’s 2^nd and 5^th Grounds are not reasonably arguable, and have no reasonable prospect of success.  I repeat the trite, that the remedy of judicial review is discretionary.  Given my conclusions on the 2^nd and 5^th Grounds, I would in any event in my discretion refuse leave on the related 3^rd Ground.

Missing forms?

61.  At the core of the 4^th Ground put forward are the suggestions that two Forms 14 dated 24 March 1964 and 6 October 1965 have been missing.  It is suggested that “[it] is BA’s responsibility to keep all the records in good order.  In other words, BA does not [sic.] any evidence to accuse that my balcony is illegal”[12]. She further says[13] that:

“ … Regardless of whether it was Building Ordinance 1955 or 1959, Building Authority should provide a full record of Index Card and Form 14 dated 6^th October, 1965 to prove that the developer had never obtained consent from Building Authority. Form 14 is a crucial document which showed whether Building Authority had granted consent to the developer on the carrying out erection of the balcony works or not. In the absence of any evidence, whatever Building Authority claimed is only a mere speculation. The benefit of doubt should go to me.”

62.  In respect of the alleged Form 14 dated 24 March 1964, Mr Yeung explains[14] that the consent was granted for the commencement of building, structure and pile caps works, and had been recorded on the Form 14 dated 26 September 1962.  The Applicant obtained a copy of the Form 14 dated 26 September 1962 on 28 October 2014.  By letter of 27 March 2015, the Applicant was advised to refer to that Form 14.

63.  In respect of the Form 14 dated 6 October 1965, the fact that it cannot be located is unfortunate and unsatisfactory.  That by itself however does not give rise to any ground for judicial review.  Mr Yeung is able to explain, with reference to contemporaneous records[15], that that Form related to drainage and wells works, and had nothing to do with the construction of any balcony.  I do not accept the Applicant’s opportunistic conjecture at §193 of her affidavit[16] that:

“ … the addition of 12 balconies was erected during January to April 1966, after the issuance of the Occupation Permit … Thus the balcony is not shown in the so called Final Approval Plan. BA also gave consent, in Form 14 dated 6^th October, 1965, on the commencement and the carrying out of the building works, ie the addition of balconies.”

64.  The 4^th Ground is not reasonably arguable, and has no prospect of success.

Applicant’s duty to deal with the unauthorized building works

65.  The Applicant claims as part of the 6^th Ground that the balconies of the Building were built between January and April 1966, that the developer who built them had been closed, and that she as an owner should not be held responsible for other people’s fault.

66.  The Applicant is the current owner of the Subject Premises.  It is correct for the BA to issue the Building Order to the Applicant.  The Applicant’s contention to the contrary is incorrect as a matter of law — see Magic Key, at§34.

67.  The Applicant also complains that BA only sought to take enforcement action years after the construction of the balcony.  She claimed in the course of her oral submissions that having paid for the Subject Premises with a balcony, she has a legitimate expectation that it be permitted to be retained.

68.  The observations of Chow J at paragraph 38 of Magic Key are apposite, which I respectfully adopt and apply, that:

“ 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 … 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 … 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 …

In short, no owner of premises in or at which unauthorized building works are found has any right or legitimate expectation to retain them ... 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.”

69.  The Applicant further relies on the prospect of redevelopment of the Building and the related acquisitions by Richfield Realty Limited.  That prospect does not make either of the 1^st or 2^nd Decisions incorrect in law or unreasonable in the Wednesbury sense. 

70.  The 6^th Ground is not reasonably arguable.

Alleged bias

71.  Alleged bias on the part of the Chairman of the Tribunal forms the basis of the 7^th Ground.

72.  I have considered Yeung Tin Leung, Vincent v The Chief Executive, HCAL 90/2003 (11 March 2005) at §20 and Chau Siu Woon v Cheung Shek Kong [2010] 3 HKLRD 48 at §§9‑11.  I accept Mr Kok’s submissions that the Applicant has failed to adduce any evidence in support if this very serious allegations against the Chairman and the Tribunal.  This ground is not reasonably arguable and has no prospect of success.

Disposition

73.  For the reasons set out above, I refuse to grant the Applicant any extension of time to apply for leave to apply for judicial review.  I would in any event refuse her leave to apply for judicial review on merits.

Costs

74.  On costs, I have considered Wong Ho Ching and Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841 cited therein.  In the present case, the Applicant made the present application despite the earlier dismissal of her first application in respect of the 2^nd Decision.  The delay has been very substantial.  After a long delay, she filed the instant Form 86 only one day before she was due to appear before a Magistrate for plea.  The clear inference in my view is that the application was taken out, at least partly, with the view of derailing or delaying the prosecution.  I accept Mr Kok’s submission in that regard.  Her action has indeed caused the prosecution to be adjourned.  Her grounds are without merits.  But the affirmation in support is by itself 117 pages long.  She made unsupported but serious allegation of bias against the chairman of the Tribunal.  Though the Applicant has not specifically asked for any oral hearing, it can be reasonably expected that the assistance of the BA would in the circumstances be invited in the form of an inter parte hearing.  The BA has indeed provided evidence and useful assistance to this court.  In all, I accept Mr Kok’s submission and make an order that the Applicant should bear BA’s costs of these proceedings (including the present hearing), but with certificate for one counsel only.  The costs are to be taxed if not agreed.