HKSAR v. JOY EXPRESS LTD

HCMA 5/2003

HEADNOTE

1. When deciding whether the attachment of something to a building constitutes building works, it is important to consider the nature and size of the thing attached, the way that it is attached, and the effect or potential effect to the building of having the thing attached to it. It is a question of fact and degree.

(Venner v. McDonnell [1897] QB 421, Brown v. Corporation of Leicester (1893) 57 JP 70, Good Think Consultants Ltd v. AG [1996] 4 HKC 782 and Convey Advertising Co. Ltd v. Building Authority, Determination of the Buildings Appeal Tribunal in Case No. 126 of 2001 (7 March 2002) considered)

2. The mere fact that action could have been taken under the Public Health and Municipal Services Ordinance, Cap. 132 does not mean that action cannot be taken under the Buildings Ordinance, Cap. 123.

3. There can be a number of reasons why the authorities may wish to proceed under one Ordinance rather than another Ordinance in any given case. One example of such reason is penalty.

HCMA 5/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 5 OF 2003

(ON APPEAL FROM WSS10132 OF 2002)

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J U D G M E N T

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1. Save where otherwise indicated, all the statutory provisions referred to are those of the Buildings Ordinance, Cap. 123.

2. Section 24(1) provides as follows:

" Where any building has been erected, or where any building works or street works have been or are being carried out in contravention of any of the provisions of this Ordinance the Building Authority may by order in writing require ---

(a) the demolition of the building, building works or street works; or

(b) (Repealed 43 of 1993 s. 6)

(c) such alteration of the building, building works or street works as may be necessary to cause the same to comply with provisions of this Ordinance, or otherwise to put an end to the contraventions thereof,

and in every case specify the time within which the demolition, alteration or work required by such order shall be commenced and the time within which the same shall be completed."

3. An order ("the Order") was served by the Building Authority on the Appellant Company under s. 24(1). The Order is dated 5 December 2001. It is addressed to the Appellant Company by name and as the owner of the building works described in the body of the Order. The body of the Order reads as follows:

" It has been brought to my attention that building works have been carried out at the external wall of Cheong K. Building, Nos. 84-86 Des Voeux Road Central, Hong Kong without having first obtained from me the approval of building plans and consent for the commencement of such building works required by section 14 of the Buildings Ordinance.

2. The said building works comprise:

(a) a metal structure attached to the external wall between the 4/F and 8/F levels of the Building, facing Des Voeux Road Central; and

(b) a metal structure attached to the external wall between the 3/F and 6/F levels of the Building, facing Jubilee Street.

3. In exercising of the powers vested in me under section 24(1) of the Buildings Ordinance, I hereby order you to:

(a) demolish the building works described in paragraph 2; and

(b) reinstate the affected part(s) of the building in accordance with the plans approved by the Building Authority.

Adequate measures to protect the public should be provided prior to and during the demolition and reinstatement works. For purpose of identification only, a copy of location plan for the said building works (as coloured yellow) is annexed hereto.

4. You are required to commence the works ordered by me in paragraph 3 above within thirty days and complete such works within sixty days of the date of this order, all to the satisfaction of the Building Authority."

4. The Appellant Company did not comply with the Order. As a result, on 23 July 2002, information was laid against it, charging that it had, contrary to s. 40(1B)(b), failed to comply with the Order without reasonable excuse for such failure. Section 40(1B)(b) provides, in so far as is material to the present case, that any person who, without reasonable excuse, fails to comply with an order served on him under s. 24(1) shall be guilty of an offence.

5. At the trial in the Magistrate's Court at Western before Allan J. Wyeth Esq., the Appellant Company argued, as it had earlier argued in correspondence with the Building Authority, that the structures in question were not building works but merely advertisement signs. Therefore, the Appellant Company argued, these structures were not covered by the Buildings Ordinance and could only be dealt with under s. 105 of the Public Health and Municipal Services Ordinance, Cap. 132, which reads:

"(1) Where, in the opinion of the Authority, any hoarding, scaffolding or other structure erected solely for the purpose of exhibiting advertisements is dangerous, or is likely to become dangerous, by reason of its construction, wind, rain, dilapidation, its age or other cause, the Authority shall cause a notice to be served upon the owner of such hoarding, scaffolding or other structure, or upon his servant or agent, requiring him, within such reasonable period as shall be specified in the notice, to remove such hoarding, scaffolding or other structure or to do such work as may be specified in the notice to render the same safe.

(2) If the person upon whom a notice is served under the provisions of subsection (1) fails to comply with any of the requirements thereof, within the time specified therein ---

(a) such person shall be guilty of an offence; and

(b) the Authority may execute, or cause to be executed, any work necessary to satisfy the requirements of the notice, and dispose of any materials removed in executing any such work, and may recover any expenses incurred thereby from such person.

(3) Where ---

(a) the owner of any such hoarding, scaffolding or other structure, or his servant or agent is not known or cannot be readily found; or

(b) such hoarding, scaffolding or other structure is, in the opinion of the Authority, in such a state that it ought immediately to be removed or rendered safe,

the Authority may forthwith, whether or not a notice has been served under subsection (1), remove it or render it safe.

(4) Where any hoarding, scaffolding or structure is removed by the Authority under the provisions of subsection (3), the Authority may dispose of any materials so removed and may recover any expenses incurred in the removal of the hoarding, scaffolding or structure and in the disposal of the materials from the owner of such hoarding, scaffolding or structure or, where the owner thereof is unknown to, or cannot be readily found or ascertained by the Authority or is absent from Hong Kong, the Authority may sell the materials and, after deducting from the proceeds of such sale such expenses, shall pay the surplus, if any, into the Treasury.

(5) Any money paid into the Treasury in pursuance of subsection (4) which remains unclaimed for a period of 5 years shall be transferred to the general revenue of Hong Kong."

6. The Magistrate rejected the Appellant Company's argument that the structures in question were not building works. Seeing that as the only issue in the case, he convicted the Appellant Company. It now appeals against conviction.

7. "Building" and "building works" are each defined in s. 2 (1) of the Buildings Ordinance. "Building", it is provided:

"includes the whole, or any part, of any domestic or public building or building which is constructed or adapted for use for public entertainment, arch, bridge, cavern adapted or constructed to be used for the storage of petroleum products, chimney, cook-house, cowshed, dock, factory, garage, hangar, hoarding, latrine, matshed, office, oil storage installation, out-house, pier, shelter, shop, stable, stairs, wall, warehouse, wharf, workshop or tower, sea-wall, breakwater, jetty, mole, quay, cavern or any underground space adapted or constructed for occupation or use for any purpose including its associated access tunnels and access shafts, pylon or other similar structure supporting an aerial ropeway and such other structures as the Building Authority may by notice in the Gazette declare to be a building"

"Building works", it is provided:

"includes any kind of building construction, site formation works, ground investigation in the scheduled areas, foundation works, repairs, demolition, alteration, addition and every kind of building operation, and includes drainage works."

8. Each of the structures in question is metal, is several storeys high and supports an advertising sign of corresponding size. A senior structural engineer with the Building Department made a report and gave evidence, acted upon by the Magistrate, to the following effect. Each of these structures is of a dead weight which he estimated at about 3.0 tons. The wind load of each is, he estimated, about 19.0 tons. Each is a large-scale cantilevered structure built over a rather busy street. Each appears to be connected to the parent building using drilled-anchors. The structural stability of each is uncertain. The structural integrity of the anchorage system of each is dubious. The members of the parent building which support the structures in question may be overstressed by having to support them. Not only the structures themselves but also the members of the parent building supporting them may fail thus causing injury and damage. The danger is categorized as imminent according to the manual on which the Building Authority operates in control and enforcement matters.

9. Mr Cheung Wai-sun for the prosecution drew my attention to a decision of Bewley J and a decision of the Buildings Appeal Tribunal. In the case before him, Good Think Consultants Ltd v. AG [1996] 4 HKC 782, Bewley J was concerned with what he described (at p. 785F) as "a structure which has been welded together and bolted to a concrete canopy, from which is supported an air-conditioning plant approximately 3.2 m long, 2.4 m high and 2.0 m deep." The question was whether the installation of that structure constituted building works within the meaning of the Buildings Ordinance. Bewley J held that it did. He referred to two English cases, namely Venner v. McDonnell [1897] QB 421 in which it was held that 3000 plus movable seats erected from time to time for the accommodation of spectators at exhibitions were not a building structure or work, and Brown v. Corporation of Leicester (1893) 57 JP 70 where it was held that a photographer's display showcase was a building, that structure being 9 feet long, 7 feet high and 3 feet wide, roofed in and fastened securely to the ground.

10. At page 785F-H, Bewley J said:

"In the present case we are dealing with a structure which has been welded together and bolted to a concrete canopy, from which is supported an air-conditioning plant approximately 3.2 m long, 2.4 m high and 2.0 m deep. There is a degree of fixation about this structure that distinguishes it from the seating in Venner's case. That I think is the criterion. It could be removed but it cannot easily be removed and I doubt if the plaintiff has any intention of removing it. Mr Yeung concedes that the air-conditioning of the restaurant by means of window units would be a difficult exercise. It is in my judgment an addition to the building and therefore 'building works' in terms of s 2 of the Ordinance."

11. The decision of the Buildings Appeal Tribunal referred to by Mr Cheung is Convey Advertising Co. Ltd v. Building Authority, Case No. 126 of 2001 (7 March 2002). I will quote what the Buildings Appeal Tribunal said, properly in my view, in paragraphs 7 and 8 of their determination:

"7. The Appellant's case was that since "signs" and "advertising signs" were not mentioned in the definition, the structures, being an advertising sign, were not building works.

8. We are unable to see any merits in this argument. The words "building construction" and "addition" in the definition of "building works" are wide enough to cover the structures in question. We accept that not every advertising sign falls within the definition of "building works". As Bewley J pointed out in Good Think Consultants Limited v. Attorney General HCMP No. 810 of 1994, whether a particular structure falls within the definition must be a matter of circumstances and degree. In this case, we have no doubt that the structures were "building works", having regard to their size, the manner of construction, and the mode of their fixation to the building."

12. On a separate point, the Buildings Tribunal said, again properly in my view, this in paragraph 10 of its determination:

"The Appellant said that advertising signs were tolerated in the past. There was no clear guidance from the Building Authority on the erection of advertising signs. It followed, it was said, that the Building Authority should also tolerate the structures in question until clear guidance has been issued. We are unable to accept this argument. The Appellant, in effect, was saying that the Government should not enforce a law if it had not been actively enforced in the past until what is considered to be sufficient guidance on enforcement has been issued and, in the meantime, infringement against the law should be tolerated. This cannot be right. The Buildings Department had already publicized the 2001 revised policy for enforcement. It was always open to the Appellant to consult an authorized person and to seek clarification with the Buildings Department. We would observe that in this case, whilst the works were still in progress, the Appellant was advised to stop work and a cease work order was issued. The Appellant chose to ignore these and completed the works on the structures. The Appellant can hardly complain that it did not know, when it chose to continue the works, that the structures would not be tolerated."

13. When deciding whether the attachment of something to a building constitutes building works, it is important to consider the nature and size of the thing attached, the way that it is attached, and the effect or potential effect to the building of having the thing attached to it. It is a question of fact and degree. Having regard to all the circumstances, I have no doubt that each of the structure in question is an addition to a building within the definition of building works given in the Buildings Ordinance.

14. The mere fact that action could have been taken under the Public Health and Municipal Services Ordinance does not mean that action cannot be taken under the Buildings Ordinance.

15. There can be a number of reasons why the authorities may wish to proceed under one Ordinance rather than another Ordinance in any given case. One example of such reason is penalty. Failure to comply with a notice served under s. 105(1) of the Public Health and Municipal Services Ordinance is punishable by a fine of $5,000 and a daily fine of $100: sections 105(2)(a) and 150 and the Ninth Schedule of the Public Health and Municipal Services Ordinance and s. 113B(1) and Schedule 8 of the Criminal Procedure Ordinance, Cap. 221. Failure to comply with a notice under s. 24(1) of the Buildings Ordinance is punishable far more seriously, namely by a fine of $50,000, a daily fine of $5,000 and even by imprisonment of one year: s. 40(1B)(i) and (ii).

16. In my judgment, the Appellant Company was rightly convicted, and there is no ground for disturbing the conviction. The appeal is dismissed.