LONGEST PROFIT (HONG KONG) LTD v. APPEAL TRIBUNAL (BUILDINGS)

CACV 60/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 60 OF 2013

(ON APPEAL FROM HCAL NO. 14 OF 2012)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  The Building Authority [“BA”] issued a demolition and reinstatement order on 23 March 2010 in respect of some unauthorized building works at Lots 613 RP and 1229 of DD 453, Tsuen Wan. The Applicant is and was at all material times the registered owner of the property. It appealed against the order of 23 March to the Appeal Tribunal (Buildings) [“the Tribunal”]. By the time of the preliminary hearing on 11 October 2011, the Applicant confined its challenge to the order to a structure [“the Building”] which it claimed to have been in existence since the 1960’s. After hearing submissions, the Tribunal held that no good cause has been shown for a full hearing and the appeal was dismissed. The Applicant applied for judicial review in respect of the decision of the Tribunal. On 5 March 2013, Jeremy Poon J [“the Judge”] dismissed the application for judicial review. Reasons for judgment were handed down on 7 March 2013. The Applicant appeals against the decision of the Judge.

The application to adduce fresh evidence

2.  By a summons of 28 November 2013, the Applicant sought leave to adduce further evidence in this appeal.   The further evidence is the affirmation of a registered structural engineer and his report of November 2013 [“the expert evidence”].  In our judgment, the application is misconceived.

3.  This appeal is an appeal against the decision of the Judge in the judicial review application, not an appeal against the decision of the Tribunal.  The role of the court in an application for judicial review is a supervisory one.  The court should not take up the role of the administrative authority or the inferior tribunal (in this case, the Tribunal) to exercise the administrative power which is conferred by statute on that authority or tribunal.  As it has been said in Technic Investment v Appeal Tribunal (Buildings) [2012] 3 HKLRD261 at para 56:

“In a judicial review, this Court does not sit as an appeal tribunal. The BAT is a specialised tribunal for deciding appeals of this nature. This Court would only intervene on public law grounds.”

4.  The Judge held that there is no public law justification for the court to intervene in the decision of the Tribunal.  On appeal, the role of the Court of Appeal is confined to an examination of whether the Judge was correct in arriving at such conclusion.

5.  As explained in the affirmation of Lin Tzu filed in support of the application to adduce fresh evidence and the submissions of counsel, the expert evidence was to support the Applicant’s claim that the works undertaken in 2010 at the Building were renovation works instead of the construction of a new building.  This is an issue going to the merits of the building appeal which is a matter for the Tribunal.  In the judicial review, as can be seen from the grounds advanced in the Form 86, the court is not concerned with the substantive merits.  Rather, the issue is whether the Tribunal acted rationally and fairly in holding that the Applicant had not shown good cause for a full hearing by the Tribunal.  This issue must be assessed by reference to the evidence and submissions placed before the Tribunal.  If the court agrees with the Applicant that there is a public law ground for intervention, the Tribunal’s decision would be set aside and the substantive merits would once again be before the Tribunal.  At that stage, the Applicant may seek to produce the expert evidence to the Tribunal.  On the other hand, if the court is not satisfied that there is a good public law reason for questioning the rationality and fairness of the process before the Tribunal, there is no basis on which the court (whether the Court of First Instance or the Court of Appeal) should treat itself as a second tier appeal tribunal to admit fresh evidence for the determination of the substantive merits of the building appeal.

6.  Given that the fairness and rationality of the process is to be determined by reference to the evidence and submissions before the Tribunal, there is no point for the Applicant to adduce fresh evidence on the substantive merits in the judicial review, whether at first instance before the Judge or on appeal.

7.  For these reasons, it is not a question of whether the Applicant can satisfy the requirements of Ladd v Marshall. The evidence should not be admissible for the fundamental objection that it is simply irrelevant as far as the judicial review is concerned.  We have therefore rejected the application for admission of fresh evidence at the hearing.

The substantive appeal

8.  Section 49 of the Buildings Ordinance provides:

“(1) The Appeal Tribunal may, in any case where it considers it appropriate to do so, hold a preliminary hearing to determine whether good cause has been shown for holding a full hearing.

(2) If the Appeal Tribunal determines that good cause has not been shown for holding a full hearing it shall make an order dismissing the appeal but shall otherwise hold a full hearing.”

9.  The issues in the substantive appeal should be confined to the rationality and fairness of the decision of the Tribunal in holding that no good cause has been shown.  If the decision cannot be impugned on the ground that it is either irrational or unfair (which are the only grounds raised in the Form 86 of 13 January 2012 in respect of which leave to apply for judicial review has been given), this appeal must fail.

10.  Some other grounds were raised in the Supplemental Notice of Appeal of 24 December 2013 and the skeleton submissions of Mr Harrison Cheung (appearing for the Applicant in this appeal but not below).  Because leave has not been granted for those other grounds to be canvassed in the judicial review, and because some of the grounds (e.g. mistake of facts, irrelevant factors being taken into account, the building has been rebuilt since 1980, the roof had not been changed from a pitched roof to a flat roof), which were facts and evidence sensitive, had not been canvassed before the Judge, it is not open to the Applicant to take these points in this appeal in accordance with well-established practice: see Cathay Pacific Flight Attendants Union v Director of Civil Aviation [2007] 2 HKC 393; Flywin Co Ltd v Strong & Associates (2002) 5 HKCFAR 356.

11.  The rationality and fairness of the decision of the Tribunal must be examined against the arguments and materials placed before the Tribunal.  Section 49 gives the power to the Tribunal to dismiss an appeal at a preliminary hearing when no good cause has been shown for holding a full hearing.  In our judgment, construing the section in its context, the burden must rest squarely on an appellant to show to the Tribunal that there is good cause for holding a full hearing.

12.  In the present case, the Applicant had more than one and a half years to produce materials to the Tribunal before the preliminary hearing to support its appeal.  At that preliminary hearing, the Tribunal had before it a bundle of documents prepared by the BA which included the following documents:

“1. Site inspection photographs and plan dated 27^th February 2010;

2. Site inspection photographs and plan dated 11^th March 2010;

3. Site inspection photographs dated 26^th March 2010;

4. Site inspection photographs taken by the Lands Department on 26^th March 2010;

5. Site Inspection Report dated 14^th April 2010 and the photographs; and

6. Site Inspection Report dated 8^th June 2011 and the photographs.”

13.  On the part of the Applicant, the following materials were placed before the Tribunal at the preliminary hearing:

(a) An Applicant’s bundle of documents consisting of a letter dated 7 December 2009, several survey sheets and aerial photos and some photos taken by the Applicant before it acquired the property in 2010; and

(b) Written submissions of the Applicant.  In the submissions, counsel indicated the Applicant abandoned the appeal in respect of structures other than the Building.  In respect of the Building, it was asserted that it was necessary to decide whether the Building had been recently constructed and the Applicant’s case was that it had been in existence since the 1960’s and the works carried out in 2010 were renovation works.  No particulars were given as to the nature and scope of the renovation works.  The Applicant simply stated it would rely on the materials in the BA’s bundle to show that the Building had been in existence since the 1960’s.

14.  There was no intimation to the Tribunal, whether before the preliminary hearing or in the course of that hearing that the Applicant intended to call expert evidence to support its case that the Building had already been there before the works undertaken in 2010.

15.  At the hearing before the Tribunal, counsel for the Applicant (who was not Mr Harrison Cheung) told the Tribunal that whether the pre-existing building shown in the photographs was 2-storey or 3-storey was not material.  He also made submissions on the basis that the Building had been in existence since the 1960’s.

16.  In the course of the oral submission by counsel for the Applicant, the chairperson inquired about the renovation works allegedly undertaken.  After counsel told the Tribunal that works were substantial but not involving structure, and the chairperson queried whether such works were carried “in the building”, counsel gave the following answer in respect of particulars of such renovation works:

“MR CHEUNG : Yes. Madam Chairperson, my instructions are these. First, as you can see from the photographs, works was undertaken in respect of the roof. It used to be a pitched roof; now it’s a flat roof. Also, works were undertaken in respect of the windows, because as you can see from the photographs, the old windows are simply different to the new ones. And externally, there has been a repainting of the external wall, together with the decoration of the four corners, the four columns.

Now, internally, I am instructed that they have done internal renovations to make the building new.  They have repainted the interior; also, what they have done is they have in fact, installed – they have installed storage areas for – to contain human remains, to contain human ashes.”

17.  When pressed for more particulars, counsel said he had not taken firm instructions regarding the internal renovations.  And then the following exchange took place:

“CHAIRMAN : Well, in that case, you have to satisfy us that the structure on page 75 is the same as the one on page 72. Otherwise, we are talking on cross-purposes.

MR CHEUNG : Yes. Well, my submission is, in order to satisfy the tribunal of that fact, that will require the calling of live witnesses to give evidence.

CHAIRMAN: Well, what can the live witnesses depose to?

MR CHEUNG: Well, they will depose to the fact that a building exist – has existed there since 1960s, that after my lay clients purchased that property, they instructed a renovation company to renovate those premises.

CHAIRMAN: Well, but you’ve already told us that your client did renovation, so -- …

MR CHEUNG: Yes.

CHAIRMAN: And then, the pictures already shows that there was a building in existence, …

MR CHEUNG: Yes.

CHAIRMAN: … in 1999 and 1962.

MR CHEUNG: Yes.

CHAIRMAN: So, your live witness does not add much more evidence to this.

MR CHEUNG: Well, they add evidence in the sense that I did not witness these things happen, but they did.

CHAIRMAN: No, but then we can see from the pictures, and from the photos.

MR CHEUNG: My understanding of what the tribunal is concerned with is whether the photographs of the new building shows a building which is the same as the existing – as the old one from the 1960s. Now, …

CHAIRMAN: We say that this is your duty to satisfy us. You are the appellant.

MR CHEUNG: Yes. Madam, I was – my submission on this respect is this is a preliminary hearing, where the appellant has to show that there is a real and substantive issue for this tribunal to determine, if the matter proceeds to a substantive hearing.

CHAIRMAN: What is the real issue that you are talking about?

MR CHEUNG: This is – the issue to be determined is a factual one, namely whether the building that we see in page 71 of the respondent’s bundle is in fact the same building as the one which was built in the 1960s. Now, that is a factual matter, which I cannot give evidence of.  And the tribunal will need to hear the evidence of live witnesses in this respect, I submit, in order to make a determination as to whether this building is, in fact, an existing building or a completely new constructions. …”

18.  Later on, counsel reiterated the scope of the intended oral evidence as follows:

“But our position is that my lay client, they are here today, and they are willing to give live evidence today that the building we see on page 71 is structurally the same as the building we see at page 75, and that all they have done to that building is undertake renovation works in respect of the building. …”

19.  In its written decision, the Tribunal referred to the Applicant’s case that the Building had been in existence since the 1960’s and then considered the materials before it.  The Tribunal took the view that the Applicant failed to substantiate its assertion that the Building was the same as the one in existence in 1962 and 1999.  The Tribunal had regard to the evidence in the BA’s bundle of documents and concluded that the Building was most likely to be a new building instead of the building in 1999.  The Tribunal also opined that the alleged renovation works were not exempted works.  On these bases, the Tribunal held that no good cause had been shown for holding a full hearing.

20.  In this appeal, the Applicant maintained its complaint that it was irrational for the Tribunal to conclude that no good cause had been shown without hearing live evidence.

21.  As regards the burden to show good cause, Mr Harrison Cheung submitted before us that an appellant only bears the evidential burden in making out its case and upon the discharge of that burden, the legal burden shifts back to the BA.  He submitted that in the instant case the Applicant had discharged the evidential burden by advancing the submission that the Building was the same as the building shown in the 1960’s and 1999 photos.  Given that there was a factual dispute, the Tribunal should have held a full hearing.

22.  With respect, we cannot agree that the Applicant had discharged the evidential burden by making unsubstantiated assertions.  As the Judge held at para 18 of the judgment below:

“In my view, the Tribunal was entitled to take into account all the evidence then before it to determine if it was necessary to hear [the Applicant]’s live witness on this issue. On the evidence then available, which was rather overwhelming objectively, I cannot say that the Tribunal’s decision not to hear the live witness tendered by [the Applicant] is one which had no reasonable basis which warrants the court’s intervention on judicial review.”

23.  This is particularly so when one bears in mind the representation of counsel as to the substance of the evidence of such live witness.  As we have already mentioned, there was no suggestion on behalf of the Applicant to the Tribunal that it would call expert evidence to substantiate its case.

24.  Since the purpose of the preliminary hearing is to determine whether there is any good cause for holding a full hearing, an appellant should at least place before the Tribunal witness statements and expert reports supporting its appeal in order to discharge its evidential burden.  As shown in the history of the proceedings, there was ample time for the Applicant to prepare such evidence before the preliminary hearing and it only chose to place before the Tribunal very limited materials which were not of much assistance to its case.  In light of the statutory scheme providing for preliminary hearing under s 49, an appellant should not withhold the preparation of its evidence until the Tribunal decided that good cause had been shown for a full hearing.  In so doing, such an appellant assumed the risk that the Tribunal was not persuaded by the limited materials that good cause had been shown for a full hearing.  This was precisely what had happened in the present case.  For reasons best known to the Applicant, it had decided not to put its cards on the table and it had done very little in terms of the preparation of the evidence for its appeal before the preliminary hearing.  In our judgment, it only had itself to blame when the risk materialised.

25.  Whilst it is correct that preliminary hearings are to weed out unmeritorious appeals, whether an appeal has merits must be determined by reference to the materials placed before the Tribunal by the parties.  If an appellant simply chose to rely on bold assertions unsupported by concrete evidence, he should not be surprised to find the Tribunal rejecting his appeal on the ground that no good cause has been shown for holding a full hearing.

26.  Viewed in this light, the complaint of Mr Harrison Cheung that the Tribunal did not allow the Applicant to adduce oral evidence has no merit.  The Applicant had failed to discharge its onus of showing to the Tribunal what oral evidence it intended to call by placing before it the witness statement of the intended witness.  Mr Harrison Cheung accepted that the Tribunal could not be said to be acting irrationally in considering the scope of evidence and its impact on the case before deciding whether useful purpose would be served by hearing the same.  Given the representation of counsel to the Tribunal as to the limited scope of the evidence, we cannot accept the contention that the decision of the Tribunal not to hear such evidence was irrational.

27.  We also rejected the submission that the Tribunal had in any way misled the Applicant’s counsel on the possibility of calling oral evidence after an adjournment.  There had not been any complaint by counsel for the Applicant when the Tribunal gave its decision or thereafter.  We also note that this was not a ground advanced in the Form 86.  Nor was this ground raised at the hearing before the Judge.

28.  We also have no reason to disagree with the Judge’s assessment that the materials before the Tribunal were overwhelmingly against the Applicant’s case.

29.  In light of the above conclusions, there is no need to consider the alternative case of the BA that in any event the renovation works were unauthorised and whether the building order can be supported on this alternative basis.

30.  For these reasons, the appeal is dismissed with costs.