HCMP000771/1990
1990 No. MP765
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
MISCELLANEOUS PROCEEDINGS
______________
IN THE MATTER of an application for leave for Judicial Review pursuant to Order 53 Rule 3 of the Rules of the Supreme Court
and
IN THE MATTER of Order No. C&E 0381/89/HK dated 31st August 1989 issued by the Building Authority under s.24(1) of the Buildings Ordinance Cap. 123 and the appeal by the Applicants Tsui Tim Sang and Hui Sau Chun therefrom to the Appeal Tribunal dated 18th September 1989
and
IN THE MATTER of decision by an Appeal Tribunal constituted under s.43 of the Buildings Ordinance Cap. 123 dated 15th December 1989
______________
BETWEEN
TSUI TIM SANG and HUI SAU CHUN
Applicants
AND
THE BUILDING AUTHORITY
1st Respondent
THE APPEAL TRIBUNAL
2nd Respondent
______________
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
MISCELLANEOUS PROCEEDINGS
______________
IN THE MATTER of an application for leave for Judicial Review pursuant to order 53 Rule 3 of the Rules of the Supreme Court
and
IN THE MATTER of Order No. C&E 0621/89/HK dated 11th December 1989 issued by the Building Authority under s.24(1) of the Buildings Ordinance Cap. 123 and the appeal by the Applicant Cheung Ying Kow therefrom to the Appeal Tribunal dated 10th October 1989
and
IN THE MATTER of decision by an Appeal Tribunal constituted under s.43 of the Buildings Ordinance Cap. 123 dated 16th February 1990
______________
BETWEEN
CHEUNG YING KOW
Applicant
AND
THE BUILDING AUTHORITY
1st Respondent
THE APPEAL TRIBUNAL
2nd Respondent
______________
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
MISCELLANEOUS PROCEEDINGS
______________
IN THE MATTER of an application for leave for Judicial Review pursuant to Order 53 Rule 3 of the Rules of the Supreme Court
and
IN THE MATTER of Order No. C&E 0382/89/HK dated 31st August 1989 issued by the Building Authority under s.24(1) of the Buildings Ordinance Cap. 123 and the appeal by the Applicant Choy Sock Ying therefrom to the Appeal tribunal dated 18th September 1989
and
IN THE MATTER of decision by an Appeal Tribunal constituted under s.43 of the Buildings Ordinance Cap. 123 dated 15th December 1989
______________
BETWEEN
CHOY SOOK YING
Applicant
AND
THE BUILDING AUTHORITY
1st Respondent
THE APPEAL TRIBUNAL
2nd Respondent
______________
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
MISCELLANEOUS PROCEEDINGS
______________
IN THE MATTER of an application for leave for Judicial Review pursuant to Order 53 Rule 3 of the Rules of the Supreme Court
and
IN THE MATTER of Order No. C&E 0383/89/HK dated 31st August 1989 issued by the Building Authority under s.24(1) of the Buildings Ordinance Cap. 123 and the appeal by the Applicant Mok Sai Chow therefrom to the Appeal Tribunal dated 18th September 1989
and
IN THE MATTER of decision by an Appeal Tribunal constituted under s.43 of the Buildings Ordinance Cap. 123 dated 15th December 1989
______________
BETWEEN
MOK SAI CHOW
Applicant
AND
THE BUILDING AUTHORITY
1st Respondent
THE APPEAL TRIBUNAL
2nd Respondent
______________
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
MISCELLANEOUS PROCEEDINGS
______________
IN THE MATTER of an application for leave for Judicial Review pursuant to Order 53 Rule 3 of the Rules of the Supreme Court
and
IN THE MATTER of Order No. C&E 0385/89/HK dated 31st August 1989 issued by the Building Authority under s.24(1) of the Buildings Ordinance Cap. 123 and the appeal by the Applicants Yip Wai Ling and Lai Shiny Kok therefrom to the Appeal Triounal dated 18th September 1989
and
IN THE MATTER of decision by an Appeal Tribunal constituted under s.43 of the Buildings Ordinance Cap. 123 dated 15th December 1989
______________
BETWEEN
YIP WAI LING and LAI SHING KOK
Applicants
AND
THE BUILDING AUTHORITY
1st Respondent
THE APPEAL TRIBUNAL
2nd Respondent
______________
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
MISCELLANEOUS PROCEEDINGS
______________
IN THE MATTER of an application for leave for Judicial Review pursuant to Order 53 Rule 3 of the Rules of the Supreme Court
and
IN THE MATTER of Order No. C&E 0312/89/HK dated 11th August 1989 issued by the Building Authority under s.24(1) of the Buildings Ordinance Cap. 123 and the appeal by the Applicant Takearn Investment Limited therefrom to the Appeal tribunal dated 1st September 1989
and
IN THE MATTER of decision by an Appeal Tribunal constituted under s.43 of the Buildings Ordinance Cap. 123 dated 15th December 1989
______________
BETWEEN
TAKEARN INVESTMENT LIMITED
Applicant
AND
THE BUILDING AUTHORITY
1st Respondent
THE APPEAL TRIBUNAL
2nd Respondent
______________
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
MISCELLANEOUS PROCEEDINGS
______________
IN THE MATTER of an application for leave for Judicial Review pursuant to Order 53 Rule 3 of the Rules of the Supreme Court
and
IN THE MATTER of Order No. C&E 0252/89/HK dated 20th July 1989 issued by the Building Authority under s.24(1) of the Buildings Ordinance Cap. 123 and the appeal by the Applicant Takearn Investment Limited therefrom to the Appeal tribunal dated 1st September 1989
and
IN THE MATTER of decision by an Appeal Tribunal constituted under s.43 of the Buildings Ordinance Cap. 123 dated 15th December 1989
______________
BETWEEN
TAKEARN INVESTMENT LIMITED
Applicant
AND
THE BUILDING AUTHORITY
1st Respondent
THE APPEAL TRIBUNAL
2nd Respondent
______________
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
MISCELLANEOUS PROCEEDINGS
______________
IN THE MATTER of an application for leave for Judicial Review pursuant to Order 53 Rule 3 of the Rules of the Supreme Court
and
IN THE MATTERof, Order No. C&E 0384/89/HK dated 31st August 1989 issued by the Building Authority under s.24(1) of the Buildings, Ordinance Cap. 123 and the appeal by the Applicant Cheung Sau Kuen therefrom to the Appeal Tribunal dated 9th September 1989
and
IN THE MATTER of decision by an Appeal Tribunal constituted under s.43 of the Buildings Ordinance Cap. 123 dated 15th December 1989
______________
BETWEEN
CHEUNG SAU KUEN
Applicant
AND
THE BUILDING AUTHORITY
1st Respondent
THE APPEAL TRIBUNAL
2nd Respondent
______________
Coram: The Hon. Mr. Justice Mayo in Court
Date of Hearing: 4, 5, 6 & 7 December 1990
Date of Delivery of Judgment: 18 December 1990
__________
JUDGMENT
_____________
1. With the agreement of all parties all these applications for Judicial Review were heard together. The relief being sought is similar and the background situation has a number of common elements.
2. It is, however, necessary to divide these applications into 3 groups. The reason for this is that the various appeals against the first Demolition Orders which will be referred to later proceeded at a different rate and consequently different considerations have to be borne in mind having regard to the grounds advanced in support of these applications.
3. The first group comprises cases where there had been an oral hearing of the first appeal and arguably a decision had been reached by the 2nd Respondent on it. The applications coming within this group are MP765 and MP766.
4. The second group consists of cases where appeals against the said first Demolition Orders were still outstanding when the second Demolition Orders were served on them which were stated by the 1st Respondent to supercede the first Demolition Order.
5. Applications coming within this group include MP767, 768 and 769.
6. The third group consists of cases where no appeal was outstanding against the first Demolition Order and Mr. Woo, for all the Applicants rightly conceded that applications in this group were much weaker. At the end of the day if I understood the position correctly, the only justification for proceeding with these applications was that if relief was going to be given on applications in groups l and 2, it was reasonable to also grant similar relief to the remaining applications. This group comprises MP770, 771 and 772.
7. All of the Applicants are owners of flats on the top floors of blocks of flats in Taikoo Shiny which is a major residential complex.
8. In addition to the interest the Applicants have in their flats, they also have rights to use the roof tops above their flats.
9. It is the contention of the 1st Respondent that the Applicants have erected structures on the roof tops which contravene building regulations and various Demolition Orders have been issued requiring the Applicants to demolish the structures.
10. The Applicants make various complaints concerning the manner in which the 1st Respondent have proceeded against them and the way the 2nd Respondent has conducted itself.
11. As there has been controversy in the hearing before me concerning both the relief sought and the grounds of the applications, I consider it to be necessary to set out in full all of this which is essentially in a common form in all the applications.
12. The Applicants are dissatisfied with the 2nd Respondent's Decision to dismiss their appeals against Demolition Orders issued by the 1st Respondent which was contained in a letter dated 15th December 1989. This letter reads:-
"Dear Sir/Madam,
Appeal Tribunal - Buildings Ordinance,
Cap. 123
Roof D, Heng Shan Mansion, Kao Shan Terrace,
No. 19 Taikoo Shing Road, Hong Kong
Case No. 10/86
With reference to your notice of appeal dated 18.9.89 against the Building Authority's Order No. C&E 0381/89/HK dated 31.8.89 in relation to the above premises, you are advised that the Appeal Tribunal instituted under the provisions of the Buildings Ordinance has pursuant to the powers vested in them held a meeting to consider your appeal.
I have also been directed to inform you that after considering the merits of your appeal and all the circumstances of the case, the Tribunal has ruled that no good cause has been shown to justify a full inquiry and that your appeal be dismissed accordingly.
Yours faithfully,
(sgd.)
(Andy FONG)
Clerk to Appeal Tribunal"
13. The Relief sought by the Applicants is:-
1.
Certiorari that the decision by an Appeal Tribunal constituted under s.43 of the Buildings Ordinance Cap.123 in Case No.10/86 dated 15th December, 1989 not to hold an inquiry and/or to dismiss the Applicants' appeal be quashed.
2.
Mandamus ordering the aforesaid Appeal Tribunal to hold an inquiry into the Applicants' aforesaid appeal.
3.
Such further or other relief as may be just.
4.
Costs."
The amended grounds upon which the Relief is sought are:-
"AMENDED GROUNDS ON WHICH RELIEF IS SOUGHT
The decision of the Appeal Tribunal dated 15th December 1989 not to hold an inquiry and to dismiss the Applicants' appeal is wrong in law and unreasonable in the Wednesbury sense.
(A)
It is wrong in law because:-
(1).
The Building Authority had a discretion whether to issue an Order under s.24(1) of the Buildings Ordinance. (see: Quebostock Limited v. The Building Authority and Another [1986] H.K.L.R. 467).
(2)
The Court of Appeal in Quebostock Limited , ibid, did not decide whether such discretion was fettered or unfettered.
(3)
It is submitted that the discretion is not unfettered. A decision of an Appeal Tribunal in Re roof over Flat A, 30th Floor, Pine Mansion, Taikoo Shing Road, Hong Kong, (unreported), stated:-
"In exercising his discretion the Building Authority should have gone much further that he did in this particular case. It is not sufficient for him to simply state that the works contravened section 14(l) and therefore must be removed. That is not an exercise of a discretion".
(4)
The Building Authority gave no reason for the exercise of its discretion in issuing Order No. C&E0381/89/HK dated 31st August 1989.
(5)
The Appeal Tribunal had failed to take into account the effect of the earlier ruling by the Appeal Tribunal regarding the Applicants' appeal against the Order No. C&E2219/85/HK dated 30th December 1985.
(6)
The only evidence available to the Appeal Tribunal are the Order No.C&E 0381/89/HK dated 31st August 1989 and the Applicants' notice of appeal and letter dated 18th September 1989.
(7)
On such evidence, the Appeal Tribunal could not reasonably have come to the conclusion that the Building Authority's exercise of discretion was correct. There was no evidence, apart from the fact that the Order No.C&E 0381/89/HK dated 31st August 1989 was issued, upon which the decision could be based.
(8)
In view of the history and circumstances of this case no tribunal properly directed could have come to the conclusion that there were no merits in the Applicants' case and that there was no good cause shown to justify a full inquiry.
(B)
It is unreasonable in the Wednesbury sense (see: Associated Provincial picture Houses v. Wednesbury Corporation [1948] 1 K.B. 223) in that:-
(1)
No reason was given why no inquiry should be held or that the appeal should be dismissed save that it is said that the decision was made "after considering the merits of (the Applicants') appeal and all the circumstances of the case". A body (howsoever described) which acts in a judicial or quasi-judicial cpaacity ought to give reasons for its decisions.
(see: R v. Immigration Appeal Tribunal, ex parte Khan (Mahmud) [1983] 1 Q.B. 790; [1983] 2 All E.R. 420).
(2)
Considering the long history leading up to the decision of the Appeal Tribunal dated 15th December 1989 and in particular:-
(a)
the Appeal Tribunal's decision of 14th April 1988 which was only communicated to the Applicants on 25th August 1988;
(b)
the fact that Order No. C&E0381/89/HK dated 31st. August 1989 is identical to Order No. C&E 2219/85/HK dated 30th December 1985, the subject of the Applicants' successful appeal on 14th April 1988; and
(c)
the dispute between the Applicants as well as other owners and the Building Authority over whether the structures on the Applicants' roof, the subject of both of the aforesaid Orders, and whether the structures on the roofs of buildings in Taikoo Shing complied with the Building Authority's guideline or the agreement reached between the Building Authority and representatives of owners of rooftops at Taikoo Shiny in June 1987,
the Applicants had a legitimate expectation that a proper inquiry would be held into their appeal and the Appeal Tribunal ought to have held an inquiry into the appeal at which time the Applicants could, inter alia, question the propriety of the issue of the Order No.C&E 0381/89/HK dated 31st August 1989.
(3)
The Applicants feel a genuine and legitimate sense of grievance that their appeal should have been dealt with by the Appeal Tribunal summarily, particularly in view of the decision and ruling of their earlier appeal. That decision stated that "the Tribunal is of the opinion that the Building authority was estopped from proceeding against the owners of such premises under the notice issued pursuant to Section 24(1)(a) of Cap. 123 but should, if required, proceed against the said owners under Section 24(1)(c) of Cap.123)"."
14. These amended grounds, however, were not the same as the amendments originally sought by the Applicants. When the application for leave to amend was made to Mr. Justice Jones, it was proposed that ground A5 should read as follows:-
"5. The Appeal Tribunal has failed to take into account that the effect of the earlier ruling by the Appeal tribunal. regarding the Applicants' appeal against the Order No. C&E 2219/85/HK dated 30th December 1985 gave rise to the principle of issue estoppel."
15. While the Appeal was successful in part it is clear from the duly perfected order mane by the Court of Appeal on the 27th November 1990 that the Court of Appeal would not permit the grounds to be amended so as to enable issue estoppel to be pleaded. In hearing these applications, I have declined to allow Mr. Patrick Woo to argue that there had been such estoppel although it will be noted later in this judgment that in effect Mr. Woo has attempted to argue precisely this in a roundabout way.
16. Another difficulty which was encountered in this matter related to the Relief which is sought. It will be noted from a perusal of the said Relief that it is all directed against the 2nd Respondent. It was, however, obvious from the submissions made by Mr. Woo that the main thrust of the complaints he was making was directed against the 1st Respondent. Mr. Andrews for the 1st Respondent complained that he found himself in an embarrassing position in such a situation. While I have considerable sympathy for the dilemma he found himself in, I considered that it was only realistic to allow the applications to proceed on the basis that roles were being assumed by both the 1st and 2nd Respondents and that I should attempt to consider the matter at large rather than adopting too pedantic an approach.
17. I will now attempt to give a brief outline of the most important facts that have a bearing on the applications which are extracted from the affidavits lodged in their support. I would mention here that one of the difficulties which was encountered was the proliferation of files containing the supporting documentation. A lot of time was wasted tracking down the different references in the various files. The presentation of the material could have been very much improved.
18. The Taikoo Shing Estate was developed from the mid 1970s to the mid 1980s.
19. As I have already said it is alleged that various structures were installed on the roof tops of the blocks. Some of these were constructed by the Applicants themselves and some by their predecessors in title. I do not consider that any difficulty arises out of this distinction.
20. What is clear, however, is that no applications were made by anyone for any approvals or consents to the construction of any of the erections. I have no doubt whatever that in the majority of the cases it would have been obvious to the persons erecting the structures that they constituted non-compliance with the terms of the Deed of Mutual Covenant which they were bound by and also that they were a violation of the requirements of the Building Ordinance Cap. 123.
21. On 30th December 1985, the 1st Respondent issued Demolition Orders which took this form.
"3. In accordance with the powers vested in me under the provisions of section 24(1) of the Buildings Ordinance, I hereby order you as owner(s)
(a)
to demolish or to remove or to carry out such alteration of the building, building works, as may be necessary to cause the same to comply with the provisions of this Ordinance, or otherwise to put an end to the contraventions thereof;
(b)
to reinstate that part of the building so affected by the said building works in accordance with plans approved by the Building Authority; and
(c)
to commence the work described in sub-paragraphs (a) and (b) of this paragraph within one month and complete such work within two months of the date of this Order, all to the satisfaction of the Building Authority."
22. At this point it may be helpful to consider the procedure which is laid down for providing machinery for appeals against orders made pursuant to S. 24(1) of C. 123. This is contained in the first schedule to the Ordinance which is as follows:-
" FIRST SCHEDULE
Procedure of Appeal Tribunal
1. (l) A person appealing from a decision of the Building Authority under Part VI of this Ordinance (hereinafter referred to as the appellant) shall, within 3 weeks of such decision give notice in writing to the Building Authority stating the substance of the matter relating to his appeal.
(2)Upon receipt of such notice the Building Authority shall convene a meeting of the tribunal.
2. If it appears to the tribunal, after due consideration of any appeal, that no good cause has been shown why an inquiry should be held, it may refuse to hold an inquiry and shall inform the appellant accordingly.
3. (1) The tribunal shall permit the appellant and such other persons as it considers to be prejudiced by the decision, which is the subject of the appeal, to appear and to be heard at the inquiry, to be assisted in the presentation of their cases by other persons and to take such part in the proceedings as the tribunal may think proper:
Provided that no person shall be entitled as of right in the capacity of counsel, solicitor or other paid advocate to conduct the case for the appellant or such other persons by addressing the tribunal or examining or cross-examining witnesses.
(2) For the purposes of sub-paragraph (1), the tribunal may cause such notice to be given to any person or to the public at large as it may think proper.
(3) The inquiry shall be held at such Place and time as the tribunal may determine and shall be a private inquiry."
23. All of the Applicants responded in a fairly similar manner. In this connection, it is pertinent to observe that there is a Residents Association for top floor flat owners and it is evident that all of the Applicants have been assisting each other and attempting to formulate a common policy in meeting the problems they were encountering. I make no criticism of this.
24. They also attempted to enter into negotiations with the 1st Respondent so as to thrash out an Agreement as to what type of structures would be acceptable and what would not.
25. These discussions were of an ongoing nature and some attempts were made to embrace the reasoning propounded by the Decisions which were beginning to emerge from the 2nd Respondent.
26. It appeared that the main factors which determined whether the structures would be acceptable were their size in relation to the overall area on the roof and whether they could be used for domestic purposes or were capable of adaptation to such a purpose.
27. I was shown the minutes of a meeting attended by members of the Association and a representative of the 1st Respondent when such matters were discussed. These were dated 10th June 1987.
28. What is clear, however, from these minutes and from further correspondence which was exchanged between the Association and the 1st Respondent is that no Agreement was ever concluded on this subject. During the course of the hearing before me, Mr. Woo acknowledged that this was so and applied to amend Ground 2(c) by deleting it.
29. The Applicants' response to the Demolition Order in MP765 was in these terms:-
"I acknowledge receipt of your order No. C&E 2219/85/HK and apologise for the inconvenience caused. However I hereby notify you of my intention to appeal against the order.
The ground for the appeal are that the structures erected do not constitute any of the following:-
(i) Dangerous structures;
(ii) Fire hazard;
(iii) Change of use of the building.
However I admit that due to a previous lack of knowledge of the Building Ordinance no approval and consent was sought prior to commencement of building works.
In the circumstances I would welcome the opportunity to discuss this matter with a representative of your Department in order to remedy my over sight."
30. In accordance with the procedure above described the 1st Respondent wrote to the Applicants as follows:-
"I refer to your letter of 1 January 1986.
Your appeal against my Order No. C&E 2219/85/HK dated 30 December 1685 has been referred to the Clerk to the Appeal Tribunal who will advise you of the date and venue of the hearing in due course."
31. At this time, a number of other appeals were outstanding in relation to other alleged contraventions of the Building Ordinance concerning structures on the roof tops of other blocks in Taikoo Shing.
32. I was taken through the record of 2 such appeals at some length and it would appear that there was a considerable amount of controversy over both the way in which the 1st Respondent should exercise discretions reposed in it and the attitude which should be adopted towards the different types structures which had been erected on the roof tops.
33. The members of the Tribunal were supplied with an Appeal file which contained plans and photographs of the structures together with the notes taken by the officer in the Building Authority who inspected the roof top when ascertaining whether in his opinion contraventions had occurred.
34. The bundle also contained the objections which had been lodged by the Applicants.
35. It is evident that initially it was the policy of the 2nd Respondent to hold open meetings when representations could be made by Appellants.
36. The letter to the Applicants informing them of the appeal was in these terms:-
" I refer to your notice of appeal dated 1 January 1986 relating to the above property.
I am instructed by the Second Appeal Tribunal to inform you that the appeal will be heard at 10.00 a.m. on Thursday, 17 March 1988, in Court No. 4, Shatin Small Claims Tribunal; 5/F., Shatin Law Courts, 1, Yi Ching Lane, New Territories.
If you have additional grounds or further justifications for the appeal, you should submit them to the Tribunal at least two weeks before the hearing.
You are advisee that both you (the appellant) and the Building Authority (the respondent) are not entitled to be legally represented in the proceedings of the hearing. Should you wish to engage counsel to present arguments for you, you should apply for approval from this Tribunal not later than 25 February 1988.
You are requested to shorten the proceedings in the following ways in time for the hearing :-
a) You may prepare a written submission and at least six copies should be made available for distribution.
b) You may obtain proofs of evidence to be given by a witness whom you may wish to call upon and such proofs can be read over rapidly by the witness with such amplification as may be necessary. All such evidence will be subject to cross examination if necessary.
c) If it is intended to submit plans, drawings or calculations, at least six copies should be made available at the hearing."
Several appeals were heard on 17th March 1988. A sensible practice appears to have been adopted of inviting Appellants to agree whatever documents could be agreed so as to save time and expense.
37. It would appear from the record of one of the other appeals relating to a Mr. Wong that when he was invited to agree the documents he declined to do so on the ground that there was already an Agreement in existence. He appears to have been referring to the Agreement I have already referred to which Mr. Woo accepted had never been consummated.
38. The President of the Tribunal Mr. Ernest Lim then decided to adjourn the proceedings so that he could see what it was all about.
39. The Association, without advising the 1st Respondent furnished the 2nd Respondent with copies of the correspondence and other material which they had on the negotiations and discussions which they had been having with the 1st Respondent.
40. The 2nd Respondent never reconvened Mr. Wong's appeal but simply issued a letter as follows:-
" I refer to the inquiry held on 17 March 1988, which was adjourned pending the determination of a preliminary issue.
I am instructed by the Second Appeal Tribunal to inform you that the Tribunal has subsequently made a Ruling on 14 April 1988 that :
"the Tribunal is of the opinion that the Building Authority was estopped from proceeding against the owners of such premises under the notice issued pursuant to section 24(1) (a) of cap. 123 but should if required proceed against the said owners under section 24(1) (c) of cap. 123"."
41. The 2nd Respondent also adjourned other appeals and did not reconvene them. So far as the first group of Applicants are concerned, they received a letter from the 2nd Respondent in slightly different terms to Mr. Wong.
" I refer to your notice of appeal dated 1 January 1986 and the inquiry held on 17 March 1988 relating to the appeal concerning the above property.
I have been directed by the Second Appeal Tribunal to inform you that the Tribunal made a ruling on 14 April 1988 that :
"the Tribunal is of the opinion that the Building Authority was estopped from proceeding against the owners of such premises under the notice issued pursuant to section 24(1) (a) of cap. 123 but should if required proceed against the said owners under section 24(l) (c) of cap. 123"."
42. Mr. Andrews was highly critical of the approach which had been adopted by the 2nd Respondent. He argued that there was an overwhelming inference that the 2nd Respondent had acted upon the materials which had been furnished by the Association and that the Decisions which had been reached had been determined without the 1st Respondent having any opportunity to make representations or to point out to the 2nd Respondent that they were proceeding under a false premise if they concluded that any Agreement had in fact been reached between the Association and the 1st Respondent.
43. There was a further problem. It was by no means certain that the Rulings or Decisions contained in the two letters I have just referred to were in fact final determinations of the appeals lying before the 2nd Respondent. Indeed, it appeared likely that reference was being made to a preliminary issue in both cases. I say this because this is specifically referred to in the letter sent to Mr. Wong and as the facts in both appeals were similar, it is likely that this was also the case in the other appeals which were adjourned for apparently the same reason, namely to afford the 2nd Respondent an opportunity to consider the nature of any previous Agreement which may have been reached between the parties.
44. Mr. Woo argued that if the 1st Respondent was dissatisfied with the 2nd Respondent's determination of the matter, the correct course for them to adopt was for them to seek to judicially review the 2nd Respondent's decisions.
45. This, of course, brings us back to what appears to me to be one of the central issues in these cases, namely whether the 1st Respondent was entitled to abandon the proceedings relating to the Demolition Orders it had issued and begin again by issuing further Demolition Orders. Mr. Woo attempted to circumvent the restriction imposed upon him of not being able to plead issue estoppel by arguing that although the 1st Respondent may have been entitled at law to proceed in the way they did, having regard to all of the circumstances of the case, it was unfair of them to have done so.
46. His argument, so far as the first group was concerned, was that the 2nd Respondent had exercised a quasi judicial function and that it should address its mind to the way the discretion had been exercised by the 1st Respondent on issuing subsequent orders.
47. The simple answer to this complaint is that it is clear from the papers which were before the second Appeal Tribunal that the previous history of the matter was before the 2nd Respondent. Indeed, it was evident from the objections made by the Applicants to the second Demolition Order that they were making complaint that the issue had already been determined and that they objected to it being ventilated on a second occasion.
48. Associated with this complaint is the objection which is made to the 2nd Respondent's decision to proceed with the hearings on the papers rather than affording the Applicants an opportunity of making oral representations at the hearing.
49. Earlier in this judgment, I have cited an extract of the first schedule to Ch. 123 from which it is clear that the 2nd Respondent have an unfettered discretion to proceed either on the papers or after a hearing when the parties could be heard.
50. Mr. Woo based his submissions on this on what he described as being the legitimate expectations of Applicants, particularly in Group 2.
51. On the facts which were before me. I do not see how it could possibly be argued that any promise or representation was made to any of the Applicants. At the most an indication was given to them on the appeal against the first Demolition Order that a hearing would be fixed. No promise was made to this effect and certainly nothing was said or done which could in my view amount to giving rise to a legitimate expectation on the part of any of these Applicants.
52. The other main objection made by Mr. Woo is the inadequacy of the reasons given by the 2nd Respondent for the Decision they reached. In this connection, it is necessary to bear in mind the amount of material which was in existence and the overriding circumstances of the various appeals.
53. All of these Applicants were fully aware of the objections which were being made by the 1st Respondent. They all accepted that they had not presented plans and obtained the requisite approvals from the 1st Respondent. They also knew from the discussions which had taken place between the Association and the 1st Respondent, the sort of factors which would be weighed in determining whether any particular structures would be permitted. I do not think that it can be reasonably contended that insufficient reasons were given for the Decisions which were reached if they are considered in the context of the overall situation.
54. Mr. Woo referred me to a number of authorities during the course of his submissions tome. I am convinced that these references are only helpful if it is borne in mind that the 1st and 2nd Respondents were exercising statutory functions and that there are accordingly limitations imposed upon the extent to which any decisions they may make may legitimately be the subject of judicial review.
55. The law on this is conveniently encapsulated in the speech of Lord Scarman in R. v. IRC, Ex parte Preston 1985 1 AC 835 at p.851:-
" The second proposition relates to the grounds upon which a taxpayer may seek judicial review of a decision taken by the Inland Revenue Commissioners. The commissioners have their statutory powers and duties, the exercise of which can be challenged by the process of judicial review only if certain principles of general application are met. The taxpayer must show either a failure to discharge their statutory duty to him or that they have abused their powers or acted outside them: Reg. v. Inland Revenue Commissioners, Ex parte National Federation of Self-Employed and Small Businesses Ltd. [1982] A.C. 617, per Lord Wilberforce, p. 632, and per Lord Roskill, p. 660.
My third proposition is that unfairness in the purported exercise of a power can be such that it is an abuse or excess of power. This was the view of the law which I expressed in the National Federation of Self-Employed case (notably at p. 650): and it remains my view. I do not consider it to be inconsistent with the words of Lord Diplock in that case, p. 637, which my noble and learned friend Lord Templeman quotes in his speech, namely that:
"judicial review is available only as a remedy for conduct of a public officer or authority which is ultra vires or unlawful, but not for acts done lawfully in the exercise of an administrative discretion which are complained of only as being unfair or unwise..."
I do not understand my Lord to have been saying that the unfairness of what has been done can in no circumstances become relevant in determining whether what was done was ultra vires or unlawful. If, however, the words are to be understood in that sense, then with very great respect I cannot accept them as a totally accurate statement of the law: see now Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374. I stand where I stood in the Court of Appeal decision, H.T.V. Ltd. v. price Commission [1976] I.C.R. 170. The present case, as is clear from the speech of my noble and learned friend, Lord Templeman, illustrates how and in what circumstances the principle of fairness falls to be considered in determining whether a statutory power has been abused or exceeded. I return later to this, the critical point in tile appeal."
I have no doubt whatever that on the facts as I have briefly summarised them the conduct of the 1st and 2nd Respondent's falls far short of the type of behaviour which would justify a court in interfering with the manner they have exercised their powers. It does not begin to approach the type of situations Lord Scarman was referring to in Ex parte Preston.
56. I also received some assistance from the judgment of Kempster J.A. in Ho King Kwan v: A.G. 1986 HKLR 1148 which was a similar case to the present ones. Mr. Justice Kempster made it clear in his judgment that it would impose an intolerable burden on the Authority's discharge of its statutory duties if restrictions were to be made upon the circumstances when Demolition Orders could be made.
57. For the reasons I have given, I am satisfied that all of these applications for judicial review must fail and I dismiss then accordingly.
58. I will hear the parties on costs and on what orders should be made concerning the 8 further applications which are still outstanding.
(Simon Mayo)
Representation:
Mr. Patrick Woo (Robert Lee & Fong) for Applicants.
Mr. Robert Andrews (Attorney General's Chambers) for 1st Respondent.
Mr. Patrick O'Sullivan (Attorney General's Chamber) for 2nd Respondent.