富怡花園（小西灣）業主立案法團 v. PAUL KO AND ANOTHER

LDBM 126/2024

[2026] HKLdT 49

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO.126 OF 2024

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JUDGMENT

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A   Overview

1.  Unauthorized structural alteration within private premises has become topical in Hong Kong in recent years. And fire safety has always been considered important, even more so after every tragedy.

2.  These proceedings arose from Respondents’ conversion of the kitchen inside their domestic flat (the Kitchen) of the subject estate (the Estate) into an “open kitchen (開放式廚房)” (the Conversion). As it turned out, the Conversion has caused much concern and actions on the part of the Applicant.

3.  It is common ground that the Kitchen has been designed, and built, as one “fully enclosed kitchen (梗廚/圍封式廚房)” as per building plans of the Estate (the Approved Plans) approved by the Building Authority (BA). However, the Conversion was, as the 2^nd Respondent admitted in the box, carried out without first submitting plans to, and applying for consent from, BA and obtaining BA’s prior approval to plans and consent to such works (入則).

4.  But the Conversion, as the Applicant finally accepted at its written closing submission[1], occurred as early as in early 1996 and no later than February 1996 (the 1996 Works), shortly after the Respondents purchased their flat as first purchasers from its developer in August 1995. Regulations and codes of practice (COP) then prevailing, as shall be seen below, were markedly different from what they are today.

5.  It was over 2 decades later that the Applicant started writing to the Respondents in January 2024 demanding reinstatement of the Kitchen to its original design (the Demand). And the Applicant took the Respondents to this tribunal 6 months later in July 2024.

6.  In August 2024, the Respondents arranged for works inside their flat “fully enclosing” the Kitchen again (the 2024 Works) (but again without BA’s prior consent or approval of plans), which works, they said, were carried out in line with the Approved Plans.

7.  Nonetheless, the Applicant was not satisfied with the 2024 Works, especially that they were carried out again without BA’s prior consent or approval of plans, and this case ultimately proceeded to trial at great expense to all concerned.

A1  Applicant’s case in general

8.  In gist, the Applicant complains in its Re-Amended Notice of Application (RANOA) that the Respondents:

(1)  had, without BA’s prior consent or approval of plans and in breach of s.14(1) of Buildings Ordinance (BO)[2], carried out the Conversion;

(2)  had, by the Conversion, removed fire-resistant walls, fire-rated door, and lighting installations etc., of the Kitchen required by the Approved Plans;

(3)  failed thereafter to install fire service installations like smoke detectors and sprinkler heads at the resulted “open kitchen”;

(4)  carried out the 2024 Works without BA’s prior consent or approval of plans in breach of s.14(1) of BO again; and

(5)  failed by the 2024 Works to account for (交代) alterations made within the Kitchen to services installations like water and electricity.

9.  By reason of the Conversion, the Respondents, the Applicant says, were in breach of provisions of the deed of mutual covenants governing the Estate executed on 26 July 1995 (the DMC) and the Building Management Ordinance (BMO)[3]. Despite repeated demands on them, the Respondents, it says, have failed to rectify their breaches.

10.  The Applicant applies to this Tribunal for:

(1)  a declaration that the Respondents were not entitled to convert the Kitchen without prior consent or approval of plans from BA and other authorities as they did (First Declaration);

(2)  a declaration that the Respondents were not entitled to carry out the 2024 Works to reinstate the Kitchen as they did (Second Declaration);

(3)  an order that the Respondents do, within 45 days, submit plans to, and apply for consent from, BA by engaging authorized person under BO (AP) and, having first obtained approval to plans and consent of BA and other authorities[4], carry out works thereafter to reinstate the Kitchen to its original state as per the Approved Plans in compliance with, inter alia, the DMC (Reinstatement Order); and

(4)  further or alternatively, damages.

A2  Respondents’ case in general

11.  In brief, the Respondents defend this claim by contending in their Re-Amended Notice of Opposition (RANOO) that:

(1)  the 2 walls, and the door, of the Kitchen that they removed in the 1996 Works are not fire-rated/fire resistant nor structural elements on the Approved Plans;

(2)  the 1996 Works did not require BA’s prior approval of plans or consent by being “exempted building works” under s.41(3) of then BO;

(3)  they were, by reason of (1) and (2) above, lawfully entitled under the DMC to carry out the 1996 Works as they did;

(4)  they have not, by reason of the 1996 Works, contravened such provisions of the DMC and BMO as alleged;

(5)  they have reinstated the Kitchen in line with the Approved Plans by erecting a door and 2 walls, added with fire-proof materials, in the 2024 Works as demanded by the Applicant and obtained approval of the same given by an AP; and

(6)  the 2024 Works were lawfully carried out as Part III minor works under “simplified requirements” of s.2(1B) of BO without the need of obtaining BA’s prior approval to plans or consent.

12.  On the above grounds, the Respondents ask this Tribunal to dismiss Applicant’s claim and to vacate its registration as a lis pendens against their flat at the Land Registry.

B  Background facts & opinions, statutory provisions & COPs

13.  The following facts in this section are taken from parties’ undisputed and indisputable oral and documentary evidence, undisputed and common expert evidence adduced by them, and admissions from parties’ factual witnesses.

14.  As shall be seen, the disposal of this case depends heavily on resolution of parties’ conflicting expert evidence on application or otherwise of various statutory provisions and COPs to the facts of this case.

15.  Hence, pertinent statutory provisions and COPs, conflicting expert opinions, and parties’ respective case, thereon, together with alleged breaches of the DMC and BMO due to the Conversion as alleged by the Applicant, are highlighted in this section too.

16.  The Applicant is represented by Mr Brian Chok of counsel (Mr Chok) at trial. Mr Chok called Professor Dr Simon Chee Wai Hung (Dr Chee), a registered architect and an AP, as Applicant’s expert at trial.

17.  Mr Mui Hoi Tak of counsel (Mr Mui) appeared for the Respondents at trial and called Mr Kenny Tse Chi Kin (Mr Tse), a registered building surveyor and also an AP, as Respondents’ expert at trial  (Dr Chee and Mr Tse are collectively called the 2 Experts).

B1  Events before 1996

18.  The Estate is called Cheerful Garden. It was built on Chai Wan Inland Lot No.148 (the Land). The Land was granted to the developer of the Estate (the Developer) by way of Conditions of Sale No.12252 dated 31 March 1993 (the Conditions).

19.  Reading the Conditions, which consist of Tender Notice (TN), Tender Form executed by the Developer on 15 January 1993, General  and Special Conditions (SC) of Agreement executed by the government and the Developer on 31 March 1993, Technical Schedule (TS) and a proposal prepared by the Developer and Chows Architects Limited (the Architect Firm) dated 14 January 1993 (the Proposal)[5], the development of the Estate on the Land was, I find, one of many projects of Private Sector Participation Scheme (PSPS) of the Hong Kong Housing Authority (HA).

20.  The Approved Plans for the development of the Estate on the Land were drawn up, inter alia, by the Architect Firm and approved by the Director of Buildings under the Conditions and also by BA under BO under Reference No.BD 2/3009/93(P).

21.  Among the Approved Plans are the following 2 drawings signed by architects of the Architect Firm as APs, namely:

(1)  Drawing No. G-14 entitled “Typical Floor Plan for Block 1 marked G-14” last approved by BA on 25 August 1994 (Drawing G14)[6]; and

(2)  Drawing No. G-1 entitled “Notes Schedules” last approved by BA on 19 January 1995 (Drawing G1)[7].

22.  In May 1995, occupation permit for the Estate (OP) was issued to the Developer and copied to the Architect Firm. The Estate was, I find, built as stated on OP to have, inter alia, 5 blocks (i.e. Block 1 to Block 5) with Block 1 having, inter alia, “1^st to 30^th floors (inclusive)” and “10 flats per floor for domestic use (italics supplied)”. According to OP, blocks 2, 3 and 5 of the Estate were, I find, each built with 39 floors. Block 4 was built with 40 floors. Each floor of these other 4 blocks was also built with 10 flats per floor for domestic use. The Estate was also built with carparks, shops, kindergarten and day nursery centre.

23.  Looking at Drawing G14, these 10 flats are, I accept, Flats A to H, J and K and they encircle one lift lobby in the center like a “#” sign (the # Sign Floor Layout).

24.  In July 1995, the DMC was, I find, executed by the Developer, first purchasers of unit of the Estate and Rich Fortress Limited (Rich Fortress) as the “First Manager” thereof (on the same day, the same 3 parties also executed a management agreement). On its terms[8], the benefit and burden of the covenants in the DMC are annexed to, and run with, the Land, and the Conveyancing and Property Ordinance[9] shall apply.

25.  In August 1995, the Respondents (a couple), became, I find, the first and the registered owners of Flat J, 17/F, Block 1 of the Estate (Flat 17J) as joint tenants and have remained so until trial.

26.  Flat 17J, I accept from Mr Tse, is around 37.991 square meters in total area. Considering, inter alia, Drawing G14 and inspection of the same by Mr Tse in March 2025, I believe it is, at all material times until trial, a three-bedroom unit with 2 toilets.

27.  Looking at Drawing G14, save except for (2) below which was varied during the period between the 1996 and 2024 Works explained below, the internal layout of Flat 17J at all material times until trial is, I find, as follows:

(1)  after one enters Flat 17J through its entrance (the Entrance) into its square-shaped dining room, one finds, I accept, the Kitchen to the near right and its square-shaped living room to the far left;

(2)  the Kitchen, according to Mr Tse, is around 4.87 square meters in total area. It is rectangular in shape, surrounded on its 2 sides by walls of the flat and on the remaining 2 sides by 2 walls perpendicular to one another (the latter two called the 2 Kitchen Walls) and thus an “enclosed” kitchen (and enclosed from floor to ceiling). The 2 Kitchen Walls separated the Kitchen from the living and dining rooms of Flat 17J. The only door in and out of the Kitchen (the Kitchen Door) is found on that wall of the 2 Kitchen Walls facing the Entrance; and

(3)  when one moves inside Flat 17J from the living room, one finds 3 bedrooms and 2 toilets at its far end, with a short corridor separating the 5 of them (the Corridor).

28.  After their purchase of Flat 17J from the Developer in August 1995, the Respondents had, I accept 2^nd Respondent’s evidence, arranged for decoration contractor to decorate entire Flat 17J in early 1996, including carrying out the 1996 Works in dispute for the Kitchen. Since completion of such decoration for entire Flat 17J, they have resided at Flat 17J until their overseas emigration in 2023 referred below.

B2  The 1996 Works

29.  The 1996 Works that the Respondents had arranged at Flat 17J in early 1996 for the Kitchen (and completed not later than February 1996) include, I find, the following:

(1)  removal of the 2 Kitchen Walls;

(2)  removal of the Kitchen Door; and

(3)  after removal of (1) and (2) above, erection of a curved cupboard-cum-table up to chest level (the Curved Table) as a new 3^rd side of the Kitchen, extending from its corner near the Corridor to its opposite corner facing the Entrance, with an opening in the middle of the Curved Table (the Opening)[10].

30.  Hence, the Kitchen was, I find, no longer rectangular in shape after the 1996 Works. The Curved Table marked out the Kitchen from the living and dining rooms, but not at the former boundary line of the Kitchen. And the Opening allowed one to go in and out of the Kitchen from and to the living and dining rooms.

31.  As a result of the 1996 Works, the Kitchen was, I find, no longer fully enclosed on all its 3 sides (as there was the Opening on the 3^rd new side) nor enclosed up to its ceiling as before (as the Curved Table reached up to chest level only).

32.  Photos of the resulted “open kitchen” taken in and after February 1996[11] (and in August 2024)[12] have been produced at trial.

33.  The 2 Experts agreed that, according to approved structural plan i.e. Drawing No. S/P4 entitled “10^th Floor to 18^th Floor Plan Framing Plan” last approved by BA on 23 March 1995,

(1)  the 2 Kitchen Walls are not loading-bearing structural wall or element; and

(2)  the Kitchen Door is not a loading-bearing structural element either.

34.  The removal of the 2 Kitchen Walls and the Kitchen Door, Dr Chee admitted in his expert report, has reduced the load on the floor of Flat 17J in principle and posed no danger in terms of structure.

B3  Statutory provisions & COPs prevailing in 1996

35.  S. 2 of BO prevailing at the time of the 1996 Works defines “building works” to include “any kind of building construction…repairs, demolition, alteration, addition and every kind of building operation, and includes drainage works (bold supplied)”

36.  S.14(1) of BO prevailing in 1996 provides:

“Save as otherwise provided, no person shall commence or carry out any building works … without having first obtained from the Building Authority —

(a) his approval in writing of documents submitted to him in accordance with the regulations; and

(b) his consent in writing for the commencement of the building works … shown in the approved plan (bold and italics supplied)”.

37.  S.41(3) of BO then prevailing provides:

“Building works … not involving the structure of any building may be carried out in any building without application to or approval from the Building Authority:

Provided that nothing in this subsection shall permit any building works to be carried out in contravention of any regulation (bold, underline and italics supplied)”.

The said proviso to s.41(3) above, as shall be seen, is of significance to the resolution of the crucial issue over the 1996 Works below.

38.  “Regulations” is defined in s.2 of prevailing BO to mean “rules and regulations made under this Ordinance”.

39.  Giving the timing of the 1996 Works, Mr Chok accepted at para 4 of his written closing submission[13] that the applicable regulations and COPs prevailing at that time are only the followings[14], namely: -

(1)  Code of Practice on Provision of Means of Escape in Case of Fire and Allied Requirements (1986 Edition) issued by Buildings Ordinance Office of then Buildings and Lands Department (1986 MOE COP)[15];

(2)  Code of Practice for Fire Resisting Construction (1989 Edition) issued by BA (1989 FRC COP)[16];

(3)  Building (Construction) Regulations (1990 version)[17] (1990 B(C)R) made under BO; and

(4)  Code of Practice for Minimum Fire Service Installations and equipment and Inspection and Testing of Installations and Equipment issued by Fire Services Department (FSD) in March 1994 (1994 FSI COP)[18].

40.  While Code of Practice for Fire Resisting Construction (1996 Edition) (1996 FRC COP) was issued by BA in January 1996[19], as explained by Mr Tse by reference to Practice Note APP-80 also issued by BA, 1996 FRC COP only came into effect on 1 August 1996 and did not apply to buildings works commenced before 1 August 1996. Mr Tse thus opined 1996 FRC COP inapplicable to the 1996 Works completed no later than February 1996. Mr Chok did not submit otherwise in his written closing submission (nor cross-examined Mr Tse to suggest otherwise). Hence, I accept Mr Tse’s unopposed evidence on this issue.

41.  And, contrary to para 16 of RANOA, Mr Chok in his written closing submission no longer relies on Code of Practice for Fire Safety in Buildings published by Buildings Department (BD) in 2011 (2011 FS COP), whose latest English version incorporating amendments made since 2011 was dated June 2023 (2023 FS COP). For the record, the Applicant has by way of para 16 of RANOA formerly complained against the Respondents of alleged breaches of clauses C13.3[20], C13.4[21], and F.5.8[22] of 2023 FS COP (the latter 2 clauses specifically provide for fire service installations like smoke detectors and sprinkler heads for “open kitchen” in domestic premises).

42.  Neither did Mr Chok, I note, continue to rely in his written closing submission as part of Applicant’s case on fire service installations like smoke detectors and sprinkler heads allegedly required by “Fire Safety Provisions for Residential Flats with Open Kitchen Design”[23] published by FSD also pleaded at the said para 16 of RANOA.

B4  Parties’ respective case on the 1996 Works

B4.1  Respondents’ case

43.  The Respondents rely on Mr Tse’s expert evidence to establish their case on the 1996 Works.

44.  Mr Tse gave evidence that the 1996 Works carried out “inside” Flat 17J involved “no structure of the building” and that the same had not been “carried out in contravention of any prevailing regulation”. Hence, all 3 elements of s.41(3) of prevailing BO, he opined, applied and the section exempted the Respondents from obtaining prior consent and approval of plans from BA for the said building works.

45.  On possible issue of contravention of regulations made under BO, Mr Tse first noted, and opined, that the 1996 Works did not fall foul of Buildings (Planning) Regulations (1984 Edition).

46.  Regarding issue of fire resisting construction (FRC), if any, of the 1996 Works, noting that 1990 B(C)R had repealed 1985 B(C)R and that all detailed technical requirements regarding construction are thereby left to COP issued by BA from time to time[24], Mr Tse turned to prevailing COPs to see if there was any possible contravention of FRC requirement by the 1996 Works.

47.  Mr Tse first noted that para 11 of Code of Practice on Provision of Means of Escape in Case of Fire and Allied Requirements (1976 Edition) issued by BD (1976 MOE COP) only required a kitchen door to be “self-closing” when the entrance to the kitchen is “adjacent” to the exit route, with a Diagram 4 in 1976 MOE COP given as reference. There was then no FRC requirement for kitchen door.

48.  Para 11 of 1976 MOE COP reads:

“Exit from Flats and Tenements

(1) Every flat or tenement floor which is provided with a single exit door shall be so arranged that the entrance to the kitchen is not adjacent to the exit route, within the flat or tenement, to such exit door. Provided that the kitchen door may be adjacent to the exit route if:

(a) such door is self-closing, and

(b) the capacity of the flat or tenement floor does not exceed ten persons (bold supplied)”.

49.  Save except for removal of the aforesaid Diagram 4, para 11 of 1986 MOE COP entitled “Exit from flats and tenements”, Mr Tse next noted, was in like terms to para 11 of 1976 MOE COP above with no FRC requirement for kitchen door. It again only required a kitchen door “adjacent” to the single exit route to be “self-closing”.

50.  When BA issued 1996 MOE COP to replace 1986 MOE COP and, in the former, deleted para 11 of 1986 MOE COP, BA, Mr Tse observed, had explained in “II. Deletion” section of 1996 MOE COP that FRC requirement for “exit from flats and tenements” of the said para 11 was “deleted” as it was “covered” by COP on FRC.

51.  However, in 1989 FRC COP made earlier, there was, Mr Tse noted, still no specific requirement of fire-resistant walls or fire-resistant door for domestic units.

52.  Para 11.2 of the 1989 FRC COP only makes FRC provision for walls and door of commercial restaurant as follows:

“A kitchen attached to a restaurant should be –

(a) enclosed by non-combustible construction having an FRP of not less than 1 hour and openings should be provided with doors having an FRP of not less than ½ hour;

(b) provided with protected lobbies between each door and any escape route from the main building (bold and italics supplied)”

53.  Mr Tse did note that, in para 14.3 of 1996 FRC COP, a new requirement that, in “domestic premises provided with a single exit door”, a kitchen “adjacent” to such door should be separated from the rest of the premises by walls having an FRP[25] of not less than 1 hour and the entrance of the kitchen should be provided with a door having an FRP of not less than 1/2 hour, was introduced.

54.  Nonetheless, as explained at [40] above and as Mr Tse noted in joint expert report (Joint Report), at the time of the 1996 Works, the 1996 FRC COP (and the above new FRP requirement for doors and walls of kitchen in domestic premises therein) has not yet come into operation (neither was the 1996 FRC COP in existence during the important period from the approval of the Approved Plans to the issue of OP).

55.  In any event, the Kitchen Door, Mr Tse further opined, was not “adjacent” to the exit route of Flat 17J. He gave his opinion by reference to above historical changes of kitchen provisions found in regulations and COPs since 1976, including by reference of Diagram 4 found in 1976 MOE COP.

56.  In further support of his above opinion on “adjacency” (and, also, on FRP requirement, if any, of the Kitchen Door), Mr Tse pointed to the facts that:

(1)  door mark “D2” means “hard wood self-closing door (1/2 HR. F.R.P. Door)” on Drawing G1; and

(2)  the kitchen doors of units A, B, E, F, G and K on 17^th floor of Block 1 of the Estate, whose layout is different from those of Flat 17J are all, on Drawing G14, marked with the door mark “D2” while, for other units on the same floor with similar layout to those of Flat 17J i.e. units C, D and H on 17^th floor and for Flat 17J itself, no such door mark was found on their kitchen doors.

57.  Mr Tse drew further support for his opinion on “adjacency” at [55] from the facts that, in approved floor plans of 2 other similar PSPS projects like that of the Estate also signed by the same architect of the Architect Firm who signed as AP on Drawing G1 at about the same time of the Approved Plans[26] (and in approved floor plan of a private project signed by a different architect earlier in late 1970s[27]) all with similar floor layouts to the # Sign Floor Layout to Block 1 of the Estate, units therein with unit layout similar to those of Flat 17J also do not have door mark on their kitchen doors, while units therein on the same floor with unit layout different from those of Flat 17J do have doors marks on their kitchen doors.

58.  Mr Tse therefore concluded, and opined, that the Architect Firm had not designed the Kitchen Door to be fire-resistant or self-closing. Neither did BA, he said, in its approval process of the Approved Plans require the Kitchen Door to be fire-resistant or self-closing.

59.  As for the 2 Kitchen Walls, they are, Mr Tse said, no different from the walls separating the 3 bedrooms of Flat 17J, which are not required or designed to be fire-resistant.

60.  The 1996 works were thus, Mr Tse concluded, not in contravention of any regulation under BO in terms of any FRC requirement for the Kitchen Door and the 2 Kitchen Walls (or any self-closing door requirement for the Kitchen Door) by means of any applicable COP. S.41(3) of BO prevailing in 1996 thus applied to exempt the Respondents from obtaining prior consent and approval of plans from BA for the carrying out of the 1996 Works.

61.  On his opinions above, Mr Tse opined that the 1996 Works did not make Flat 17J unsafe, and did not pose any risk to public safety, as alleged by Dr Chee at [69] below.

62.  Finally, to determine if s.41(3) exemption applied to building works like the 1996 Works, BO does not mandate that one must engage an AP to go through the procedure of s.14(1) of BO. Such suggestion made by Dr Chee at [64] below is, Mr Tse said, no more than a recommendation made by Dr Chee to avoid one falling foul of the law.

B4.2   Applicant’s case

63.  Dr Chee opined differently from those of Mr Tse above in the following material respects.

64.  Dr Chee first suggested that prior consent from BA under s.14(1) of then BO should be sought for the 1996 Works on the following grounds:

(1)  S.14(1) of BO secures that “substantive” requirements of BO are met for building works while s.41(3) of BO only exempts one from going through the said s.14(1) statutory “procedure”.

(2)  S.14(1) of BO, said Dr Chee, not only focuses on structural aspects of building works but also other aspects like means of escape (MOE) and FRC, which would also be checked by BD in processing plans submissions thereunder[28]. BO was after all, he stressed, enacted to prevent “buildings from becoming unsafe” with public safety in mind.

(3)  The Kitchen has, after the Conversion, become an “open kitchen” not in line with its original design. It could well be, or was, said Dr Chee, deficient on MOE and/or FRC requirements on applicable regulations made under BO and COPs.

(4)  Considering the duties of AP under BO, engagement of AP (and with his cooperation with BA) under s.14(1) of BO would, he said, ensure both “procedural” and “substantive” requirements under BO are met for the 1996 Works. Had an AP been consulted for the 1996 Works beforehand, among other possible scenarios, the said AP could well, Dr Chee said, be “uncertain” about contravention of BO or not, or “not fully certain” about application of s.41(3) exemption, such that the AP should, and would, have advised the lay client to go through s.14(1) procedure to confirm the position.

65.  Contrary to the views of Mr Tse at [55], Dr Chee opined that kitchen doors of all 10 units on Drawing G14 (including, thus, the Kitchen Door for Flat 17J) are all “adjacent” to their respective “exit/entrance doors (出口/大門)”.

66.  In support of his opinion above, Dr Chee relied on the following:

(1)  his own measurement, and comparison, of the different distances from respective kitchen doors to respective “exits/entrance doors (出口/大門)” (DTD Distance) of all 10 units on Drawing G14; and

(2)  so-called “possibly most reasonable exit route” of Flat 17J on his own postulation drawn by him at para 61 of his expert report, which route indicates, he said, that the Kitchen Door is “adjacent” to “exit/entrance door (出口/大門)” of Flat 17J.

67.  Dr Chee further gave different evidence from Mr Tse by opining that the 2 Kitchen Walls were designed to have 1-hour FRP and that the Kitchen Door was also designed to have half-an-hour FRP.

68.  In support of his opinions of above FRP design, Dr Chee gave evidence of, and referred to, the following: -

(1)  Alleged marking of the 2 Kitchen Walls on Drawing G14 after it was magnified at para 65 of his expert report, which enlarged marks, he said, indicate that they are made of “Solid Concrete Block” (according to legend found at Drawing G1) and that the 2 Kitchen Walls are 75mm-thick on Drawing G14;

(2)  “Fire Compartments” requirement prescribed by Reg.90(b) of 1990 B(C)R which reads as follows:

“Every building shall be designed and constructed so as to –

(a) inhibit the spread of fire within the building and to nearby buildings by dividing the building into compartments;

(b) provide adequate resistance to the spread of fire and smoke by the separation of different uses in a building by compartment walls and floors and by the separation of the building from any adjoining building or site (bold and italics supplied)”;

(3)  Table XLIII of 1985 B(C)R that provides for a FRP of 1 hour in, inter alia, domestic purpose if the volume, or floor area in any 1 storey is more than 230 square meter in floor area in any 1 storey (which volume, or floor area, requirement was, said Dr Chee, met in this case);

(4)  Table A (walls and partitions) of Third Schedule of 1985 B(C)R that provides for minimum thickness of 75mm (excluding plaster) for “Solid” “Concrete blocks” (Class 1 Aggregate, no plaster) to have 1-hour F.R.P.;

(5)  Though above Third Schedule found in 1985 B(C)R was “removed” when 1990 B(C)R was enacted to repeal 1985 B(C)R, according to his own experience, said Dr Chee, the Architect Firm likely adopted the same standard of FRC of this “removed” Third Schedule in designing FRP for the 2 Kitchen Walls;

(6)  from his own practice and experience as AP, “solid concrete blocks” were, he opined, likely used to erect the 2 Kitchen Walls to provide for FRC and not otherwise;

(7)  the absence of door mark “D2” on the Kitchen Door and on kitchen doors of units C, D and H on the same floor on Drawing G14 was, he opined, “not omission (沒有遺漏)”, “nor mistake or deliberate choice (不能說是錯誤或別有用心)”; it could well be “drawing technique (可以是繪圖手法)” (as Flat 17J could be drawn as “mirror image” of unit H above it and the 2 of them being “mirror images” of units C & D on the other side of the lift lobby) and the significance, if any, of such absence of door mark “D2” for the Kitchen Door as relied by Mr Tse “should not be exaggerated (不能小題大做)”;

(8)  “kitchen” was designated as “Group 1: A designated area of special hazard normally with a building” by para 3.2 of 1994 FSI COP; and

(9)  1996 FRC COP, Dr Chee opined in the Joint Report, had not “raised” design standards of elements of construction for kitchen in domestic units as the words of “提升部分建築構件的設計標準” at para 2 of Practice Note APP-80 quoted by Mr Tse regarding application of 1996 FRC COP may suggest. Such standards of elements of construction for kitchen in domestic units found in 1996 FRC COP, he said, have already existed in regulations and COPs made before 1996 FRC COP.

69.  Hence, the original design of the Kitchen under the Approved Plans and its compliance with applicable “substantive” requirements of MOE and FRC under BO had, said Dr Chee, been damaged by the carrying out of the 1996 Works, causing Flat 17J to become unsafe and posing fire safety risk to the public.

70.  Based on the above opinions of Dr Chee, Mr Chok submitted at para 37 of his written closing submission that removal of the 2 Kitchen Walls, which were designed to be fire-resistant, contravened the following COP provision and regulation: -

(1)  Para 11.3 of 1989 FRC COP which reads:

“Other areas of high fire risk directly associated with a normal occupancy in a building should be adequately separated by fire resisting construction (bold supplied)”;

(2)  Reg.90(b) in Part XV of 1990 B(C)R[29] entitled “Fire Resisting Construction” which reads:

“Every building shall be designed and constructed so as to –

(a) inhibit the spread of fire within the building and to nearby buildings by dividing the building into compartments;

(b) provide adequate resistance to the spread of fire and smoke by the separation of different uses in a building by compartment walls and floors and by the separation of the building from any adjoining building or site;

(c)…

(d)… (bold and italics supplied)”.

71.  The removal of the Kitchen Door, which was also designed to be fire-resistant and to be self-closing on Dr Chee’s opinions, submitted by Mr Chok at para 41of his written closing submission, also contravened the following COP provisions and regulation: -

(1)  Para. 11(a) of 1986 MOE COP entitled “Exits from flats and tenements” which reads:

“Every flat or tenement floor which is provided with a single exit door shall be so arranged that the entrance to the kitchen is not adjacent to the exit route[30], within the flat or tenement, to such exit door[31]. Provided that the kitchen door may be adjacent to the exit route if

(a) such door is self-closing, and

(b) the capacity of the flat or tenement floor does not exceed ten persons (bold and italics supplied)”.

(2)  Para 11.3 of 1989 FRC COP at [70(1)] above; and

(3)  Reg.90(b) in Part XV of 1990 B(C)R at [70(2)] above.

72.  On the premises that: -

(1)  the Kitchen after the Conversion was inconsistent with the Approved Plans;

(2)  the 1996 Works are “building works” within s.2 of BO; and

(3)  the 1996 Works were “in contravention” of the above regulations made under BO (and above related COP provisions) [32],

Mr Chok submitted that the 1996 Works are not exempted building works under s.41(3) of BO prevailing in 1996[33] and that s.14(1) of BO applied to them in 1996.

73.  Absent prior consent or approval of plans of BA required by s.14(1) of BO, the 1996 Works are, Mr Chok submitted, unauthorized building works (UBW) liable to enforcement action taken out by BA.

B4.3  Issues to be resolved on the 1996 Works

74.  On parties’ respective cases above, this Tribunal is therefore required to determine whether:

(1)  submission of plans to, and applying for consent from, BA under s.14(1) of then BO was, as Dr Chee opined at [64], necessary or required to determine if the 1996 Works fall within s.41(3) of then BO (the Determination Issue);

(2)  the carrying out of the 1996 Works were, as Mr Mui contended, not in contravention of prevailing applicable BO regulations and COPs, including 1) para 11(a) of 1986 MOE COP; 2) para 11.3 of 1989 FRC COP; and 3) reg.90(b) of 1990 B(C)R Mr Chok submitted at [70] and [71] and, thus, not within the proviso of s.41(3) of then BO (the Proviso Issue)[34].

75.  To answer the Determination Issue and the Proviso Issue, this Tribunal is first required to decide whether:

(1)  the Kitchen Door was “adjacent” to the exit route of Flat 17J (the Adjacency Issue) such that the said door was designed by the Architect Firm, and approved by BA, on the Approved Plans, and built, as a “self-closing” door (the Self-Closing Door Issue);

(2)  the Kitchen Door and/or the 2 Kitchen Walls was/were designed by the Architect Firm, and approved by BA, on the Approved Plans, and built, to have respective FRPs suggested by Dr Chee at [67] (the FRP Issue); and

(3)  the carrying out of the 1996 Works made Flat 17J unsafe and/or posed public safety risk for breach of applicable MOE and/or FRC requirements under regulations made under BO and/or the Approved Plans as alleged by Dr Chee at [69] (the Safety Issue).

76.  After ruling on the Determination Issue and the Proviso Issue, this Tribunal could then decide the crucial issue for the 1996 Works, namely, whether they were “exempted building works” under s.41(3) of then BO that do not require application to or approval from BA as Mr Mui contended or UBW in breach of s.14(1) of then BO as submitted by Mr Chok (the Crucial 1996 Works Issue).

B5   Alleged breaches by reason of the Conversion

B5.1  The DMC and BMO

77.  As pleaded in RANOA and as confirmed by Mr Chok at para 13 of his written closing submission, the following removal(s) carried out by the Respondents in the Conversion were alleged by the Applicant to have contravened the following provisions of the DMC and BMO.

B5.1.1   Removal of the 2 Kitchen Walls and the Kitchen Door

(1)  Clause 4 of section IV(A) of the DMC (Clause 4) reads:

“No Owner shall make any structural alterations to any part of the Estate owned by him nor will any Owner use, cut, injure, damage, alter or interfere with any of the main walls or beams or floors of any part or parts of the Estate including any part or parts of the Estate’s Common Areas or any of the Estate’s Common Facilities or any equipment or apparatus on in or upon the Land or the Estate not being equipment or apparatus for the exclusive use and benefit and any such Owner nor will any Owner make any alteration to any installation or fixture so as to affect or likely to affect the supply of water, electricity, gas or other services (bold and italics supplied).”

(2)  Clause 5 of section IV(A) of the DMC (Clause 5) also reads:

“No Owner will permit or suffer to be done any act or thing in contravention of the terms and conditions in the Conditions or store any dangerous or unlawful goods or combustible or explosive substance in the Estate (except such as may be reasonably required for the purpose of cooking and heating) or whereby any insurance on the Estate or any part thereof may become void or voidable or whereby the premiums for any such insurance may be increased and in the event of any breach of this Clause by any Owner, in addition to any other liability incurred thereby, such Owner shall pay the amount of any increase in premium caused by or on account of such breach (bold and italics supplied).”

At para 15 and 19(2) & (3) of RANOA, the Applicant referred to “legal requirements warranty (法定要求保證)” in 2023 Ping An Policy and 2024 China Pacific Policy at [89] and [95] respectively below and alleged that the Respondents had, by reason of the Conversion, contravened the said warranty in breach of Clause 5.

(3)  Clause 11 of section IV(A) of the DMC (Clause 11) reads:

“Each Owner shall maintain[35] the part or parts of the Estate in respect of which he is entitled to exclusive possession in good repair and condition to the satisfaction of the Manager and in such a manner so as to avoid any loss, damage, nuisance or annoyance to the Owners or occupiers of any other part or parts of the Estate (bold and italics supplied).”

(4)  S.34H of BMO reads:

“(1) Where a person who owns any part of a building, has the right to the exclusive possession of any part of a building or has the exclusive right to the use, occupation or enjoyment of that part, as the case may be, but the deed of mutual covenant in respect of the building does not impose an obligation on that person to maintain the part in good repair and condition, that person shall maintain that part in good repair and condition.

(2) The obligation in subsection (1) shall be deemed to be an obligation owed to all owners of the building under the deed of mutual covenant (bold and italics supplied)”.

(5)  Clause 20 of section IV(A) of the DMC (Clause 20) also reads:

“All Owners shall at all times observe and perform the Estate Rules and all Owners of Residential Units shall at all times observe and perform the House Rules[36] as herein provided (bold supplied).”

B5.1.2   Removal of the Kitchen Door

(6)  Clause 26 of section IV(A) of the DMC (Clause 26) also reads:

“Each Owner shall observe and perform all the terms conditions and covenants contained in the Conditions and to pay a due proportion of the rent therefor (bold supplied)”.

“The Conditions” means, of course, the Conditions by which the Land was granted to the Developer to develop the Estate.

B5.2  The Conditions

78.  At trial, a copy of the Conditions was produced by the Applicant. Clause 2(xxxiii) of TS[37] (Clause 2(xxxiii)) therein that was alleged not to have been observed by the Respondents as per Clause 5 and Clause 26 reads as follows:

“where a kitchen door is adjacent to the exit route of the flat, it shall comply with the requirements on the Code of Practice on Provision of Means of Escape in Case of Fire and Allied Requirements. Furthermore, the kitchen door shall be a solid core timber door constructed in accordance with the Building (Construction) Regulations Table G for a ½ hour fire resistant period (FRP) (bold and italics supplied)”

79.  On the pleaded case of the Applicant at para 18 of RANOA, the MOE COP in Clause 2(xxxiii) above is said to be 1986 MOE COP. And B(C)R in Clause 2(xxxiii) above was said by Mr Chok to be 1990 B(C)R at para 64 of his written closing submission.

B5.3  The House Rules

80.  At trial, the Applicant through its sole factual witness at trial, one Ms Yau Ngai Ting (Ms Yau), property officer of the Applicant, also produced as evidence an undated bilingual copy of House Rules of the Estate (House Rules) issued by Chevalier Property Management Limited (Chevalier).

81.  Part 3 of House Rules entitled “Additions & Alterations” alleged by the Applicant not to have been observed by the Respondents as residential owners as per Clause 20 reads, inter alia, as follows:

“a. Additions & Alteration Advise

Please be advised that any additions and alterations are not allowed unless a written approval and consent is obtained from relevant Government Authorities and from the Manager.

Please note and observe the rules carefully to avoid any contravention to Government Regulations, Building Ordinance and/or the DMC and Agreement.

If approval is not obtained in advance, the owner will be required to reinstate the premises to the satisfaction of the Manager and relevant Authorities, and the owner will bear all the costs incurred.

…

d. Alteration to Internal Wall

Any alteration to internal non-structural wall must obtain a written consent from the Manager as such may affect the structural integrity of the building (bold and italics supplied).”

B6  DMC provision relied by Respondents

82.  On the other hand, the Respondents contended that they were entitled under clause 21 of Section IV(A) of the DMC (Clause 21)[38] to carry out the 1996 Works as they did.

83.  Clause 21 reads:

“Each owner may at his own expense install in the part of the Estate owned by him such additions, improvements, fixtures, fittings and decoration and remove the same Provided however that no such installation or removal shall cause any structural damage or interfere with the enjoyment of any other part of the Estate (bold and italics supplied)”.

B7  Events from 2008 to 2011

84.  Returning to the facts of this case as I found and pertinent statutory provisions and COPs prevailing after 1996, various amendments were made in June 2008 to BO, including introduction of a minor works control system (MWCS)[39], whose provisions came into operation on 31 December 2010[40].

85.  And, as from 30 December 2009, main provisions of Building (Minor Works) Regulation (B(MW)R)[41] also came into operation[42].

86.  In April 2010, the Applicant, I accept the evidence of Ms Yau, was incorporated as an owners’ corporation of the Estate.

87.  In 2011, the 2011 FS COP was, on its foreword, issued by BD to replace, inter alia, 1996 MOE COP and 1996 FRC COP.

B8   Events after 2023

88.  Since April 2023, the Respondents have, I find, emigrated overseas and left Flat 17J vacant.

89.  On 9 June 2023, China Ping An Insurance (Hong Kong) Co. Ltd. (Ping An) issued a “property all risks insurance” policy to, inter alia, the Applicant and “individual owners” of the Estate as insureds over all real and personal property of the Estate, including its common area and common facilities, covering the period from 15 June 2023 to 14 June 2024 (2023 Ping An Policy), subject to, among other clauses, a “legal requirements warranty” which reads: -

“Warranted that the insured shall duly comply with and observe all provisions requirements and regulations of (I) fire services department and/or (II) labour department and/or (III) dangerous goods ordinance and/or (IV) factories and industrial undertaking ordinance and/or (V) public health and urban services ordinance including any notice given or requirements made pursuant to the same the breach and/or disregard of which or may affect or increase the risk hereby insured except only that this warranty shall not apply in respect of any ordinance, provision, requirement, regulation or notice expressly waived by the Company endorsement on this policy (bold supplied)”.

90.  As Ms Yau admitted in the box, the Applicant first discovered of the Conversion in late 2023.

91.  On 22 January 2024, the management office of the Applicant (the Management Office) first wrote to the Respondents making the Demand requiring it to be compiled within 14 days on ground of alleged breach[43] of the DMC and of legislations, claiming that the Conversion, including removal of fire-rated door of the Kitchen, without approval of government departments is strictly prohibited at law[44].

92.  As from 1 February 2024, the Respondents had, I find, entrusted estate agent to offer Flat 17J for sale in the market.

93.  On 9 February 2024, 14 March 2024 and 6 May 2024, the Applicant wrote to the Respondent(s) thrice repeating the Demand for alleged breaches[45] of the DMC, BMO, BD regulations[46] and FSD regulations[47]  and alleged avoidance of insurance policy etc., requiring their compliance within 14 days, 14 days and 21 days respectively and threatening legal proceedings in default.

94.  In the meantime, the Respondents had, I find, replied to the Management Office on 23 February and 24 March 2024 saying that they could not return from overseas to Hong Kong at short notice and also requested to be provided with specific details, or provisions, of the DMC that they have allegedly contravened (to which they got no answer from the Applicant prior to these proceedings).

95.  On 5 June 2024, China Pacific Insurance Co. (Hong Kong) Ltd. (China Pacific) issued a “property all risks insurance” policy to, inter alia, the Applicant and “individual owners” of the Estate as insureds over all its real and personal property of the Estate, including its common area and common facilities, covering the period from 15 June 2024 to 14 June 2025 (2024 China Pacific Policy), subject to, among others, a “legal requirements warranty” which reads: -

“Warranted that the Insured shall duly comply with and observe all provisions, requirements and regulations of (i) Fire Service Department and/or (ii) Labour Department and/or (iii) Dangerous Goods Ordinance and/or (iv) Factories and Industrial Undertakings Ordinance and/or (v) any other Statutory Obligation including any notice given and requirements made pursuant to same the breach and disregard of which may affect or increase the risk hereby insured except only that this Warranty shall not apply in respect of any Ordinance, Regulation Notice or Requirement expressly waived by the Company by endorsement on this Policy (bold supplied)”.

(2024 China Pacific Policy and 2023 Ping An Policy are collectively called the 2 Policies).

96.  On 8 July 2024, the Respondents entered into a provisional agreement to sell Flat 17J to purchasers.

97.  On 12 July 2024, Ms Yau as authorized representative of the Applicant acting in person took out NOA against the Respondents in these proceedings. Its contents were verified by statement of truth signed by Ms Yau[48].

98.  In NOA, the Applicant disclosed for the first time that the specific provisions that it relied as against the Respondents are 1) 3 clauses of the DMC; 2) s.14(1) of BO; 3) s.8 of Cap.95B[49]; and 4) clause C13.4 of 2011 FS COP and “its subsidiary legislations”. The Applicant prayed in NOA for the Demand to be compiled within 45 days with requisite consents from “all authorities concerned”.

99.  Ten days later, the Applicant, I find, delivered NOA to Land Registry on 22 July 2024 for registration as lis penden against Flat 17J and, had, on the following day, notified solicitors acting for its purchasers of the existence of these proceedings[50].

100.  On 30 July 2024, the Respondents by their representative filed their Notice of Opposition in person, saying therein that they were actively seeking quotation from decoration company and professional assistance to reinstate the Kitchen as per the Demand but that 45 days were insufficient for their task as they were overseas.

101.  On 7 August 2024, subject to the terms, covenants and conditions of the Housing Ordinance[51], the Respondents had, I find, entered into an agreement for sale and purchase of Flat 17J with 2 purchasers nominated by HA.

B9  The 2024 Works and its aftermath

102.  Five days ago, on or about 2 August 2024, the 2^nd Respondent had, I find, engaged one May Tik Construction Co. Ltd. (May Tik), a registered minor works contractor for Part III minor works under B(MW)R, to carry out works at Flat 17J and authorized May Tik to apply to the Management Office for permission to carry out the same.

103.  According to a quotation issued by May Tik to the 2^nd Respondent (the Quotation), the project entrusted by the latter to the former was stated therein to be “解除命令及室内裝修工程” and the proposed works stated thereon are “1) 申請小型工程；2）提供AP解去屋宇署命令；3）拆去原有廚房櫃；4）建做防火磚包括批盪（跟原則做妥）；5）安裝防火門一度；and 6）執妥水電喉位”[52].

104.  On or about 9 August 2024, a 4-page application form for decoration and repair work (裝修及維修工程·申請書) (the Application Form) signed by May Tik and by the 2^nd Respondent only at its p.3, together with decoration deposit[53], was, I find, submitted by May Tik to the Management Office. The works stated thereon was put down as “還原廚房工程” and was said to begin on 12 August 2024. The Application Form was signed and approved by the Management Office on, I find, the same day of its submission[54].

105.  The terms of the Application Form (with a version dated 13 June 2023 at its bottom left):

(1)  require the applicant to be satisfied with the legality of the proposed works;

(2)  provide for various legal disclaimers on the part of the Applicant;

(3)  require all works to be of the same standards as per sample of delivery of vacant possession by the Housing Department in 1995 (unless with prior written consent of authorities and the Management Office); and

(4)  disallows any conversion of kitchen into “open kitchen”.

106.  At the same time, the terms of the Application Form also allow owners to carry out such decoration works they like, “so long they do not involve structure of the building, affect common parts of the Estate, pose safety threat, affect other owners or are otherwise illegal (bold supplied)”.

107.  Thereafter, May Tik, I find, began the 2024 Works at the Kitchen on or about 13 August 2024 and completed them by about 16 August 2024.

108.  The 2024 Works, I find on all the trial evidence, including the Quotation, expert evidence and Form MW05 at [111] below, include:

(1)  demolition of the Cured Table[55];

(2)  erection of two non-loading bearing walls up to ceiling level perpendicular to one another (the 2 New Kitchen Walls); and

(3)  erection of one self-closing door at that wall of the 2 New Kitchen Walls facing the Entrance (the New Kitchen Door),

with (2) & (3) both made of and/or added with fire-proof materials.

109.  After completion of the 2024 Works, the Kitchen, I am satisfied, became again rectangular in shape having 4 sides and “fully enclosed” from floor to ceiling.

110.  Photos of both interior and exterior of the Kitchen taken after completion of the 2024 Works are also produced at trial[56].

111.  On 19 Aug 2024, May Tik, submitted to BD a “Notice and Certificate of Completion of Class III Minor Works” as the appointed prescribed registered contractor:

(1)  certifying that erection of the 2 New Kitchen Walls had been carried out as “item 3.39” of class III minor works;

(2)  enclosing a floor plan with the Kitchen in rectangular shape having 4 sides (which, I believe, was taken from Drawing G14); and

(3)  enclosing one photo of the Kitchen before the said works showing the Kitchen as an “open kitchen” with the Cured Table as its 3^rd side and another photo after the same showing the Kitchen as a rectangular “enclosed” kitchen

(collectively Form MW05).

112.  On 23 August 2024, BD wrote to May Tik acknowledging receipt of Form MW05 and reminded the latter of s.61 of B(MW)R at [133]. On or about the same day, the Management Office sent its staff to Flat 17J to inspect the 2024 Works as completed and took photographs.

113.  The next day i.e. on 24 August 2024[57], on, I think, the arrangement of May Tik[58], one Mr Wong King Lau Geoffrey, an AP (AP Wong), had sent a letter to this Tribunal (copied to, inter alia, the Applicant, the Management Office, May Tik and the Respondents) enclosing, inter alia, copy Form MW05, copy certificate of fire-rated wooden door set and certificate of concrete block wall and claimed therein that the Kitchen had been reinstated as per the Approved Plans on 26 August 2024 with fire-rated block wall partition and fire-resistant door in compliance with BO and related regulations.

114.  A week later i.e. on 31 August 2024, also on arrangement of May Tik, AP Wong had sent another letter with same copy enclosures above to this Tribunal copied to same parties and made the same claim above (except with a varied completion date of 16 August 2024) and withdrew the said 24 August letter.

115.  On the same day, the Respondents wrote to the Applicant reporting completion of the 2024 Works by May Tik on 16 August 2024 and urged that these proceedings be discontinued without delay.

116.  The Management Office had, I find, replied to the Respondents in writing on 6 September 2024:

(1)  disagreeing that the Kitchen had been reinstated in accordance with the law;

(2)  disapproving of them carrying out reinstatement by way of item 3.39 of class III minor works[59]; and

(3)  accusing them that they had again, without prior approval of the authorities and, without engaging AP, enclosed the Kitchen without accounting for alteration of services installations therein (such as electricity, gas and drainage) with danger and damage arising therefrom.

117.  The Respondents in turn responded to the Applicant in writing on 17 September 2024 repeating that the Kitchen had been reinstated as per the Approved Plans in accordance with the law after they have engaged an AP and registered contractor.

118.  On 27 November 2024, on enquiry of the Respondents, AP Wong further wrote a letter to “whom it may concern” copied to them explaining that:

(1)  a “simplified statutory procedure” by way of MWCS was introduced in 2010;

(2)  the 2024 Works involved no structural alteration and basically involve 2 items both within MWCS i.e. erection of a partition wall and installation of fire-rated door;

(3)  reinstatement of the Kitchen through MWCS was lawful and in compliance with BO; and

(4)  cabinet installation, water supply, lighting installations inside the Kitchen are all “internal fit-out works” which are exempted building works under BO.

119.  On 7 January 2025, BD received an application from Applicant’s solicitors to inspect building/minor works records of Block 1 of the Estate. On 16 January 2025, BD wrote in reply to say their application “cannot be processed” as “there are no alterations and additions records related to 17/F of the subject building”. In line with Respondents’ admission, I accept such BD reply to represent the truth.

120.  I also accept from the Respondents that they have not, at all material times from 1996 until trial, received any notice from BD taking issue with the 1996 Works or requiring them to reinstate the Kitchen. And I accept from Ms Yau that the Applicant has, at all material times from late 2023 until trial, not complained of the Conversion or the 2024 Works to BD or FSD at all.

121.  Save except for the said letter from BD to Applicant’s solicitors at [119] and save except instructing Dr Chee as its expert, the Applicant has, I note, adduced no evidence to show that it had by itself or through others, be they legal or other professionals, consulted (or sought to consult) the Approved Plans or the authorities regarding the Conversion or the 2024 Works at any time before trial.

122.  Finally, on 10 March 2025, Mr Tse and Dr Chee have jointly inspected the Kitchen.

B10  Statutory provisions, and COPs, prevailing in 2024

123.  S.14(1) of BO prevailing at the time of the 2024 Works was identical to that prevailing at the time of the 1996 Works.

124.  But, due to the introduction of MWCS, s.14AA of BO had by 2024 been introduced. It reads:

“Section 14(1) does not apply in respect of minor works commenced under the simplified requirements (bold supplied)”.

125.  And s. 41(3) of BO prevailing in 2024 reads:

“Building works (other than … minor works) in any building are exempt from sections … 14(1) … if the works do not involve the structure of the building (bold supplied)”.

126.  The terms of s. 41(3D) of BO prevailing in 2024 is, one reads, like that of the proviso to s.41(3) of BO then prevailing at the time of the 1996 Works. It reads: -

“Nothing in subsections (3)… permits any building works … to be carried out in contravention of any regulations (bold supplied)”.

127.  Under s.2(1) of prevailing BO, “minor works” means

“building works designated in the regulations as minor works for the purposes of this definition (bold supplied)”,

  and “simplified requirements” means

“any requirements prescribed in the regulations as simplified requirements for the purposes of this definition (bold supplied)”.

128.  Under s.2(1B) of prevailing BO,

“…minor works that are commenced or carried out without the approval and consent of the Building Authority under section 14(1) are to be regarded as minor works commenced under the simplified requirements if—

(a) a prescribed building professional or a prescribed registered contractor has been appointed in respect of the works; or

(b) the works are commenced or carried out by a prescribed registered contractor (bold supplied)”.

129.  Under s.3 of B(MW)R, “class III minor works” are designated as one out of 3 classes of “minor works” for purpose of s.2(1) of BO. By s.2(2)(c) thereof, “class III minor works” means “any item of minor works specified in Division 3 of Part 3 of Schedule 1”, which includes item 3.39 i.e. “erection of any non-load bearing block wall in a domestic flat” when the prescribed technical requirements therein are met (Item 3.39)[60].

130.  Under s.4 of B(MW)R, the requirements in Part 6 thereof are prescribed as “simplified requirements” for purpose of s.2(1) of BO. Under s.36 in the said Part 6, within 14 days after completion of class III minor works, prescribed registered contractor appointed must submit to BA (a) a notification in the specified form, in which, inter alia, it has certified that the works have been carried out in accordance with BO and its plans or description provided; (b) plans or description of works showing the works as completed; and (c) photographs showing the physical condition of the premises immediately before the commencement and after the completion of the works.

131.  Under s.9AA(1), (5) & (6) of BO, for minor works that are commenced or carried out without BA’s approval and consent under s.14(1), a prescribed registered contractor appointed under the simplified requirements shall comply with the requirements thereof, including (a) providing continuous supervision in relation to the carrying out of the works; and (b) complying generally with BO.

132.  Under s.28 of B(MW)R, among others, a registered minor works contractor can be appointed as prescribed registered contractor in respect of class III minor works for purpose of s.9AA of BO. Under s.44 thereof, a registered minor works contractor so appointed must, inter alia, carry out the works personally and ensure that the works are carried out in accordance with BO.

133.  Under s.61 of B(MW)R, an acknowledgment of receipt of any plan or other documents submitted in respect of any minor works by BA does not, inter alia, grant any exemption from, or permit any contravention of, any provision of BO or any other enactment.

134.  If minor works commenced under the simplified requirements have been carried out in contravention of BO, BA may 1) issue order requiring demolition or alteration of the works; 2) itself demolish or alter the works if its order is not compiled with; 3) recover its costs concerned; and 4) register its order at the Land Registry: see s.24AA of BO.

135.  For building works other than minor works commenced under the simplified procedures, BA may, under s.24 of BO, exercise like powers as those in the preceding paragraph for such works that have been carried out in contravention of any provisions of BO[61].

136.  Finally, by the time of the 2024 Works, the prevailing FS COP was 2023 FS COP last revised in June 2023.

B11  Parties’ respective case on the 2024 Works

137.  The Applicant made, I note, no claim in RANOA against the Respondents that they had, because of the 2024 Works, been in breach of the provisions of the DMC or BMO.

138.  The following two issues are the only issues joined by the parties on the 2024 Works that require my determination, namely:

(1)  whether prior approval and consent of BA under s.14(1) of BO is required for erection of the New Kitchen Door and the 2 New Kitchen Walls in the 2024 Works (2024 Approval Issue); and

(2)  whether the Kitchen has been reinstated as per the Approved Plans by having the New Kitchen Door and the 2 New Kitchen Walls erected in the 2024 Works (2024 Reinstatement Issue).

They are respectively expert issues Nos.5 and 7 that this Tribunal directed the 2 Experts to give opinion on.

B11.1   2024 Approval Issue

B11.1.1   Applicant’s case

139.  For his views below, Dr. Chee opined that erection of the New Kitchen Door and the 2 New Kitchen Walls in the 2024 Works do not amount to “minor works” under BO and prior approval to plans, and consent, given by BA is required.

(1)  Although the 2 New Kitchen Walls may, he said in his expert report, be constructed through the minor works mechanism (he agreed that their erection is Item 3.39 and that their erection did comply with procedures for Part III minor works of B(MW)R), the construction of the New Kitchen Door cannot.

(2)  MWCS is only, he stressed, a simplified procedure which by itself does not involve any approval or confirmation by BD of compliance with “substantive” BO requirements, if any, applicable to alleged minor works. There is, he stressed, no mechanism in MWCS to supervise or verify such compliance effectively.

(3)  Indeed, in this case, proof of fire-proof materials used in the 2024 Works i.e. fire-rated certificates of the New Kitchen Door and the 2 New Kitchen Walls, was not enclosed to Form MW05, such that BA had no idea if such works comply with any applicable “substantive” requirements of BO, nor would BA approve the same under MWCS, as it had expressly disclaimed such approval (or waiver) when it wrote to May Tik acknowledging receipt of MW05 on 23 August 2024.

(4)  AP Wong’s claim in his letter sent to this Tribunal on 31 August 2024 that “reinstatement completion had been reported to BD through MWCS” was, Dr Chee opined, “misleading” when BD was in the dark that the 2024 Works were carried out to “reinstate” the Kitchen. This is not to mention that AP Wong had no role to play in the 2024 Works on the face of Form MW05[62].

(5)  Given that the 2024 Works were carried out with a “view” to “reinstate” the Kitchen, s. 14(1) of BO ought, Dr Chee opined, to be adopted, or else the damage caused by the 1996 Works to its original design could not be remedied. Given the deficiencies of MWCS he observed above, the only method to achieve the “purpose” of “reinstating” the Kitchen is, he said, by going through s.14(1) of BO first before carrying out its “reinstatement”.

(6)  BA, Dr Chee added, has no power to give retrospective approval or consent for UBW[63]. Carrying out the 2024 Works without first going through s.14(1) of BO and to claim afterwards that the said works had remedied irregularities of the 1996 Works seems, he opined, to be contrary to the said principle. And carrying out the 2024 Works as minor works, said Dr Chee in the Joint Report, does not remove the UBW status of the 1996 Works if it be so held.

(7)  Both the 1996 and 2024 Works carried out without BA’s prior consent or approval of plans, he concluded in the Joint Report, are UBWs not fulfilling applicable substantive and procedural requirements of BO at their respective times. Both need to be undone before the Kitchen could be reinstated after first obtaining BA’s prior approval and consent.

B11.1.2   Respondents’ case

140.  Mr Tse disagreed with Dr Chee. He gave evidence, and opined, on 2024 Approval Issue as follows:

(1)  Having considered Form MW05 and copy certificates produced by AP Wong in his letter dated 31 August 2024 and compared their information against technical requirements prescribed for Item 3.39, he was satisfied that both erection of the New Kitchen Door and the 2 New Kitchen Walls fall within Item 3.39. As such, the 2024 Works could, he said, be carried out under simplified requirements of B(MW)R.

(2)  Indeed, completion of the 2024 Works had been reported to BD as Item 3.39 of Part III minor works in Form MW05.

(3)  While B(MW)R does not require prescribed registered contractor to submit certificate or proof of materials to BD (thus the same might not have been enclosed to Form MW05), the said regulations, Mr Tse stressed in the Joint Report, do require prescribed registered contractor to ensure that the minor works are carried out in accordance with BO (and to certify the same in Form MW05).

(4)  BD, Mr Tse also stressed in the Joint Report, would also make random check of documents submitted under MWCS to ensure that there is no contravention of BO and its regulations and, in case of any breach found, could demand rectification and/or consider taking out criminal prosecution under BO[64].

(5)  Finally, Mr Tse pointed to the fact that the legislature has expressly provide for “minor works” to remove certain UBWs by way of items Nos.1.38, 2.39 and 3.32 as Parts I, II and III minor works in Schedule 1 of B(MW)R, which provisions, he opined, contradicted Dr Chee’s contrary view that rectification of all UBWs must go through s.14(1) of BO first to obtain consent and approval of plans from BA.

141.  Hence, Mr Tse opined that the erection of the New Kitchen Door and the 2 New Kitchen Walls in the 2024 Works had properly been carried out as Part III minor works under simplified requirements prescribed by B(MW)R and he answered 2024 Approval Issue in the negative.

B11.2   2024 Reinstatement Issue

142.  The 2 Experts again held opposite views on this second Issue regarding the 2024 Works.

B11.2.1   Applicant’s case

143.  Dr Chee opined in his expert report that the focus of this issue should not be on erection of the New Kitchen Door and the 2 New Kitchen Walls (or the lines and dots on the Approved Plans) alone.

144.  He first emphasized that original design of the Kitchen in the Approved Plans also represents, or requires, that the building works thereon must be completed complying with then applicable legislations. OP would, he added, only be issued for the Estate after building works on the Approved Plans have been completed in compliance with all then applicable legislations.

145.  Secondly, Dr Chee stressed again that the “purpose” of the 2024 Works was to “reinstate” or “restore” the Kitchen. On that, he observed in his expert report the following 5 deficiencies on his site inspection of the Kitchen, which observations were made by him as if BA were to be approached to issue OP for the Estate (the OP Issue Approach), namely that: -

(1)  the floor of the Kitchen is not “even” enough (地面不平) in line with BO standards to be safely used for escape in the event of an emergency and this would be a “material” consideration for BA to issue OP for the Kitchen;

(2)  such walls below 1.2 m, and floor, of the Kitchen have not been provided with “non-absorbent material (非吸收性物料盪面)” as required by reg.45(2) of Building (Planning) Regulations[65] to make the Kitchen a “sanitary” place that “could be cleaned regularly” such that OP would not be issued for the Kitchen in its present state;

(3)  the Kitchen has not been provided with a properly constructed “cooking slab (灶台)” as required by reg.45(3)(a) of Building (Planning) Regulations[66], in view of the “damaged” tabletop not in compliance of reg.45(1) of the said regulation[67];

(4)  vertical floor drain (企閘) (VFD) shown on approved drainage layout drawing[68] cannot be found, which floor drain (去水位/口) could possibly have been covered by cupboard. Absence of floor drain could lead to flooding and sanitary problems in the Kitchen that renders it un-usable in its present conditions (alternatively, if floor drain in the Kitchen shown on photo produced by the Respondents existed, but was obstructed on the day of inspection, Dr Chee added in the Joint Report, it faced downwards, and not towards the wall, such that it is doubtful if such floor drain had been installed in line with approved drawing and/or legislations and/or without damaging water-proofing layer); and

(5)  electric cables and their connection points at ceiling of the Kitchen were found “exposed” (外露電線及電線接駁位) i.e. without “basic protection” as required by code 2 “interpretation” of Code of Practice for the Electricity (Wiring) Regulations (2020) Edition published by Electrical & Mechanical Services Department (E&MSD) to prevent persons having direct contact with their “live” parts. Such protection not only protects electrical equipment concerned, but also minimizes spread of fire inside or from the Kitchen

(collectively the 5 Deficiencies).

146.  On the OP Issue Approach and his site observations above, Dr Chee opined that the Kitchen after the erection of the New Kitchen Door and the 2 New Kitchen Walls in the 2024 Works had not been “reinstated” in line with the Approved Plans.

147.  The “reinstatement” of the Kitchen should not, he said in the Joint Report, be limited on the New Kitchen Door and the 2 New Kitchen Walls but should extend to make the Kitchen complying with applicable legislations to allow OP to be obtained.

148.  Hence, Dr Che answered 2024 Reinstatement Issue in the negative.

B11.2.2   Respondents’ case

149.  Mr Tse gave instead a positive answer to 2024 Reinstatement Issue for the following reasons.

150.  Having observed at his site inspection that the dimensions of the New Kitchen Door and the 2 New Kitchen Walls are largely in line with those of the Kitchen Door and the 2 Kitchen Walls shown on the Approved Plans, Mr Tse opined in his expert report that the Kitchen after the erection of the former two conforms with the Approved Plans.

151.  Regarding the 5 Deficiencies suggested by Dr Chee, Mr Tse opined them either to be irrelevant to 2024 Reinstatement Issue or not having been made out.

152.  Mr Tse opined as follows in his expert report and/or the Joint Report (as the case may be): -

(1)  Uneven floor in the Kitchen is, he opined in the Joint Report, matter of internal fitting out works not reflected in the Approved Plans. Such works are thus irrelevant to 2024 Reinstatement Issue. They would be carried out in future by would-be users of the Kitchen.

(2)  All internal surfaces of the Kitchen at its wall with window and also at its wall having cupboard, including such surface behind its space below the level of the sink, have been “faced with tiles (鋪砌瓷磚)” in the 1996 Works as required by, and in line with, reg.45(2) of Building (Planning) Regulations, and maintained to be so until his 2025 site inspection of the Kitchen, said Mr Tse in his expert report.

(3)  Though cooking stove (煮食爐) has been removed, gas supply valve (煤氣閥) was still found inside the Kitchen at his site inspection and place or space for installing cooking stove remains. Reg.45(3)(a) of Building (Planning) Regulations is, said Mr Tse in his expert report, thus exempted. The outstanding work would be completed by future occupants. The existing conditions of the Kitchen, said Mr Tse in the Joint Report, comply with reg.45 of Building (Planning) Regulations.

(4)  Provision of floor drain (去水位/口) inside the Kitchen is, said Mr Tse in the Joint Report, not a statutory requirement under Building (Standards of Sanitary Fitments, Plumbing, Drainage Works and Latrines) Regulations[69]. And, on photos produced by the Respondents, floor drain was present in the Kitchen on the day of site inspection though it could have been obstructed on that day.

(5)  Electricity cables with the Kitchen are electrical works, which are not regulated by BO nor reflected in the Approved Plans. Hence, it is, said Mr Tse in the Joint Report, also irrelevant to this case. In any event, future occupants would finish such outstanding works before occupying Flat 17J.

153.  Hence, notwithstanding the 5 Deficiencies, Mr Tse remained of the view that the Kitchen had been “reinstated” as per the Approved Plans after the New Kitchen Door and the 2 New Kitchen Walls have been erected in the 2024 Works.

C   Assessment of witnesses

C1  Ms Yau

154.  Save except for her admissions which I give full weight, I do not find Ms Yau entirely reliable. In any event, considering limitation of her evidence and her serious misapprehension below, her evidence is, I think, of limited assistance to Applicant’s case.

155.  Let me give 3 examples to illustrate my views above.

(1)  Ms Yau could not, I think, have personal knowledge of events before she admittedly joined the Applicant as late as in May 2021. Notwithstanding such limitation, she saw fit to claim at para 22 of her witness statement that the Respondents had not obtained written consent from the Applicant regarding their alteration works to Flat 17J. But, after cross-examination by Mr Mui, she saw no choice but to agree that the Conversion must have been carried out before she joined the Applicant. And she admitted that the Applicant had not, after diligent search, been able to retrieve written records of decoration applications submitted by owners as far back to 1996, as it had only kept such records for as short as 7 years. It is thus, one thinks, most questionable how she could have been able to make the above claim of lack of written consent given by the Applicant as she claimed in her witness statement.

(2)  Ms Yau, I note, also admitted to Mr Mui that she does not have expertise[70] “to read or understand the Approved Plans” but, again, she saw fit to have claimed in her witness statement that 4 undated photos of units of the Estate downloaded from 2 online property websites have depicted photos of kitchen of the Estate “in line with the Approved Plans”, when she had, she agreed with Mr Mui, no idea of the dates these photos were taken, and when the sites concerned gave no guarantee that no alteration has been made to kitchens shown therein, nor guaranteed that they depicted their state upon first delivery of vacant possession by the Developer. In the end, Ms Yau had again no choice but to agree with Mr Mui that she had “no factual basis” to make the above claim of the 4 online kitchen photos “in line with the Approved Plans” (not to mention that Dr Chee agreed with Mr Mui that one such online photo is not in line with the Approved Plans after cross-examination[71]).

(3)  Ms Yau was, I think, apparently under a serious and fundamental misapprehension that 2011 FS COP (and 2023 FS COP) applied to the Kitchen and that fire service installations like smoke detectors and sprinkler heads were required to be installed therein on these COPs and on alleged regulations of FSD at [42], and was prepared to assert in her evidence and in NOA to RANOA (that she verified by her statement of truth) that the Respondents were in serious breaches of such COPs, and such service installations requirements therein, which stance Mr Chok, however, could no longer support in his written closing submission.

C2  the Respondents

156.  To the contrary, I find the Respondents credible and reliable witnesses and, unless otherwise stated, accept their factual evidence. Mr Chok only cross-examined them on limited topics and the two were, I note, not shaken after his cross-examination.

157.  For example, I find as per para 7 and 8 of 2^nd Respondent’s witness statement that the Respondent had notified the Management Office in advance of its decoration works for entire Flat 17J in early January 1996, paid deposit for, and allowed inspection during and after, the same, and no issue was taken of them in 1996. Mr Chok had simply not cross-examined on such evidence.

158.  Mr Chok did, I note, cross-examine 2^nd Respondent’s evidence at para 42 and 43 of her witness statement that there was no “alteration” of utility service like water and electricity inside the Kitchen during the 1996 Works but his challenge ended, I think, in failure. My reasons are as follows:

(1)  Though the 2^nd Respondent agreed that the position of sink allegedly shown in post-1996 Works photos she produced was different from that of sink allegedly shown on Drawing G14, she maintained steadfastly that there was no alteration of common drainage pipes connecting to the Kitchen in 1996 when the contrary was put to her by Mr Chok. No scaffolding, she stressed and I accept, was erected outside Flat 17J to perform the 1996 Works[72].

(2)  When Mr Chok pointed to the 2^nd Respondent that the Quotation contained the words “執妥水電喉位”, she explained and I accept, that it was one item of the many items that made up the Quotation as one “entire package” which total package price she paid in full at the end of the day but this item, she was advised by May Tik and verily believed, was not done in the end.

(3)  Despite staff of the Management Office had inspected, and taken photos of, Flat 17J after the 2024 Works and Dr Chee had, on 2024 Reinstatement Issue, gone as far to point out as many as the 5 Deficiencies after inspecting the Kitchen, the Applicant adduced, I note, no evidence to prove its pleaded case in RANOA of “unknown alteration” works having been made to the Kitchen in the 1996 Works affecting utility services which it required the Respondents to “account for”[73].

(4)  Indeed, as Mr Mui correctly pointed out, Ms Yau gave no evidence, or any particular at all, in her witness statement of any “alteration” (not “installation” in the first place, one must distinguish) allegedly made in the 1996 Works to utility services of, or connecting to, the Kitchen. Neither did, I think, Dr Chee do so in his reports or in his evidence.

(5)  Had there been any alteration of utility services in the Kitchen affecting common facilities of the Estate as early as in 1996 as alleged, it would likely, I think, have been investigated by the manager of the Estate and/or the Applicant earlier and would also likely to have been discovered by them before trial.

159.  Hence, the Applicant has, I conclude, failed to prove that the Respondents had, by the Conversion in the 1996 Works, altered utility services of, or connecting to, the Kitchen as it alleged.

C3   Dr Chee

160.  Having regard to authorities quoted by Mr Chok on criteria or guidelines to assess reliability of expert witness in section B of his written closing submission, I do not find Dr Chee a reliable witness after having heard and seen him in the box.

161.  As shall be seen below, on weak points of his opinion evidence, Dr Chee, I observed, could not withstand meticulous and skillful cross-examination of Mr Mui, contradicted himself on (and was forced to correct or even abandon) material parts of his evidence.

162.  Contrary to Mr Chok’s submission at para 5.1 of his written closing submission, material parts of Dr Chee’s evidence were, I note, shown by cross-examination to be unsupported by authority. Alleged experience of Dr Chee that he used to support his own opinion was exposed to be contrary to provisions of regulations made under BO. And distance measurements Dr Chee made and relied upon by him in his expert report were also shown to be incorrect after cross-examination.

163.  Importantly, I have great doubt about Dr Chee’s impartiality and his observance of his overriding duty as a court expert.

164.  One pointer to Dr Chee’s partisan stance is that he proliferated on irrelevant issues and gave opinion not strictly on expert issues that this Tribunal had, by its directions, required the 2 Experts to give on. And he had, I think, omitted to refer to material provisions or materials that could detract from material parts of his opinion he put forward in Applicant’s favour.

165.  Let me illustrate first by reference to the Determination Issue. Dr Chee, I note, dwelt at much length in his expert report on the relationship between AP and BO, duties of AP for the 1996 Works, and BD’s supervision of AP in the process of plan submission despite the Respondents had admittedly never engaged any AP to lodge any plans of the 1996 Works to, and seek approval and consent to the same on their behalf from, BA.

166.  It is thus, I think, neither here nor there for Dr Chee to suggest at [64(4)] that an AP, if engaged by the Respondent, would have “advised” them to go through s.14(1) of then BO to “confirm” if s.41(3) of then BO applied or not to this case etc. The hypothetical scenarios he posed had not, and could not have, arisen on admitted facts of this case. As Mr Mui rightly observed at para 43 to 45 of his opening submission, the Applicant sought no relief, nor pleaded any case, against any AP, in these proceedings. No AP is a party to these proceedings.

167.  Expert issue No.3 that this Tribunal had directed the 2 Expert to give opinion is 1) whether the removal of the Kitchen Door and the 2 Kitchen Walls required approval and consent from BA under s.14(1) of then BO or 2) was “exempted building works” not involving structure of the building under s.41(3) of then BO. There is simply not a single word of “AP” in this issue. With respect, the 2 Experts are required to “answer” whether 1) or 2) is correct after the carrying out of the 1996 Works and not to “advise” what one “should” do before their commencement.

168.  Indeed, Dr Chee agreed with Mr Mui under cross-examination that consulting or engaging an AP is not a statutory requirement under BO for one to avail of s.41(3) of BO and, thus, he has no authority to support his claim on the Determination Issue. And, in line with Mr Tse’s view at [62], Dr Chee further agreed with Mr Mui that his suggestion to consult an AP at [64] is only his “recommendation”.

169.  Hence, this Tribunal has decided to resolve the Determination Issue against the Applicant.

170.  Again, Dr Chee, I note, repeatedly stressed in his expert report that s.14(1) of BO serves to ensure that “substantive” requirements of BO are met[74] while s.41(3) of BO allows one to avoid going through the said “procedure”. But he nowhere, I note, in his expert report or the Joint Report referred to the important proviso of the said s.41(3).

171.  While Dr Chee preferred to put in his expert report that s.41(3) of BO “does not exempt (没有免除)” “exempted building works” from complying with “substantive” requirements under BO, a more accurate way to put the matter in line with the law is, I think, that the proviso of the said s.41(3) Dr Chee omitted to refer also serves to ensure that “substantive” requirements under BO are “not contravened” before building works could qualify to be “exempted building works” under the said s.41(3) (and that is exactly the approach adopted by Mr Tse).

172.  On the key question whether the 1996 Works had complied with “substantive requirements” of BO, the only answer that this Tribunal can give after the event is, I agree with Mr Mui, either yes or no. There is, I am afraid, no third answer open as Dr Chee would like to suggest by way of hypothetical scenarios that he posed to a non-existent AP never engaged by the Respondents.

173.  Another example that Dr Chee had proliferated on irrelevant issues is his repeated emphasis on the 2024 Approval and Reinstatement Issues that the “purpose” of the 2024 Works is to “remedy” “the 1996 Works” or to “reinstate” the Kitchen.

174.  “Purpose” of the 2024 Works is, I am afraid, not found in expert issues Nos.5 and 7 that this Tribunal required expert evidence. Expert issue No.5 is whether the erection of the New Kitchen Door and the 2 New Kitchen Walls required approval under s.14(1) of BO or were Part III minor works under BO. Expert issue No.7 is whether the erection of the New Kitchen Door and the 2 New Kitchen Walls conform with the Approved Plans or not.

175.  As Mr Mui had cross-examined Dr Chee to suggest and as provisions of BO and B(MW)R in section B10 show, notwithstanding the 2024 Works themselves were carried out by the Respondents with the above “purpose” in mind due to the Demand and NOA issued by the Applicant, they could, I think, still qualify as Part III minor works if they otherwise comply with all the applicable provisions of BO and B(MW)R in section B10. The contrary suggestion by Dr Chee is, I also observed, not supported by authority in terms of statutory provisions and is, I think, contradicted by B(MW)R provisions pointing to the opposite direction pointed out by Mr Tse at [140(5)].

176.  Unlike the applicant in the case of Filipino Club v Building Appeal Tribunal & Anor [1995] 3 HKC 356 cited by Mr Chok, May Tik had not, I think, by submitting Form MWO5 to BD, applied for retrospective approval to the 1996 Works already completed 2 decades ago. No order under s.24 of BO has been issued against the Respondents on the 1996 Works. May Tik just followed the simplified requirements of BO to notify BD of the erection of the 2 New Kitchen Walls of the 2024 Works as Item 3.39 of class III minor works.

177.  Hence, Dr Chee’s view at [139(6)] is, I think, also irrelevant to the 2024 Approval Issue or expert issue No.5[75]. This is another instance of his proliferation on irrelevant issues that adversely affect his reliability as an impartial court expert.

178.  For reasons given in this and the next section, unless otherwise stated, I prefer the factual and opinion evidence of Mr Tse whenever the 2 Experts differ. And I give full weight to all such admissions made by Dr Chee in favour of the Respondents’ case.

C4  Mr Tse

179.  Mr Chok has mounted serious criticism against Mr Tse at para 5 of his written closing submissions.

180.  Save except for his criticism that, on the Adjacency Issue, Mr Tse has failed to mention earlier in his report and the Joint Report 3 additional factors (the 3 Factors)[76], and a provision about “dead-end distance” in 1986 MOE COP (the Dead-End Provision), that he gave for the first time in the box to buttress his opinion on the said issue, the rest of Mr Chok’s criticism have not, I think, been made out.

181.  But the 3 Factors were adduced into evidence because Mr Chok himself put them one by one to Mr Tse to be alleged relevant factors on the Adjacency Issue. As Mr Mui rightly pointed out and I agree, they are nowhere to be found in Dr Chee’s opinion on the Adjacency Issue. Nor has Dr Chee considered them to be relevant on the Adjacency Issue. Hence, their earlier omission seems neither here nor there.

182.  For the Dead-End Provision relied upon by Mr Tse for the first time in the box, that is not a provision that detracts from Mr Tse’s opinion in Respondents’ favour. Neither is there any cross-examination by Mr Chok that such a provision was made up by Mr Tse. Indeed, it can be found at clause 12(b)(ii) of 1986 MOE COP.

183.  Accordingly, the above 2 criticism, though made out in terms of evidence, does not, I think, carry much weight against the credibility or reliability of Mr Tse at the end of the day.

184.  As shall be seen below, the majority of Mr Tse’s evidence is, I think, well supported by authority, well-reasoned, rational, succinct, balanced and fair.

185.  Having heard and seen Mr Tse in the box, I am also satisfied that he has tried his best to discharge his overriding duty to give his independent evidence to this court as an impartial court expert. He was, I observe, fair enough to agree with Mr Chok at times.

186.  Importantly, unlike Dr Chee’s performance in the box, Mr Tse remained unshaken after cross-examination by Mr Chok.

187.  Overall, I find Mr Tse a reliable and credible witness and, unless otherwise stated below, accept his evidence and give them full weight.

D   The Kitchen Door – the Adjacency, Self-Closing Door & FRP Issues

188.  First, Dr Chee’s reliance of the different DTD Distances of all units on Drawing G14 in purported support of his view on these issues at [66(1)] cannot, I think, be supported for the following reasons: -

(1)  The Adjacency Issue to be resolved is whether the Kitchen Door is “adjacent” to the “exit route (逃生途徑)”, and not the “exit/entrance door (出口/大門)”, of Flat 17J (see para 11(a) of 1986 MOE COP at [71(1)]) and the DTD Distances considered by Dr Chee are, I therefore agree with Mr Tse, neither here nor there.

(2)  In any event, Dr Chee admitted under cross-examination that his measured DTD Distances for Units G and K (i.e. 4.65m, said by him to be longer than DTD Distance of 2.8m for Unit J) in his expert report are incorrect and that the smaller figures for the two given by Mr Tse in the Joint Report (i.e. 2.074m and thus shorter than for Unit J) are to be preferred (on Drawing G14, kitchen doors of both Units G and K have door mark D2 but that of Unit J does not).

(3)  When Mr Mui afterwards invited Dr Chee to withdraw his opinion on the Adjacency Issue at para 55 of his expert report, Dr Chee elected at first to withdraw only that part on Units G and K but maintained the rest thereon relying on his measured DTD Distances (of 4.65m) of Units B and E, insisting that there was “no other possible reason” for the kitchen doors of these 2 latter units having door mark D2.

(4)  Afterwards, embarrassingly, Dr Chee, I observed, had to withdraw further his opinion of “no other possible reason” when Mr Mui showed him that, on Drawing G14, occupants of Units B and E escaping through their respective sole corridors separating bedrooms therein “must pass” “right in front of” the kitchens of these 2 units such that their “layout” “could explain” their kitchen doors having door mark D2 (as Mr Tse pointed out in the Joint Report and I agree).

189.  Second, Dr Chee agreed, I note, with Mr Mui that occupants of Flat 17J need not escape using the exit route postulated by him at [66(2)] and that such “notional” route drawn by him had not been submitted by the Architect Firm in plans lodged to BA in the approval process leading to the Approved Plans. Hence, this ground relied upon by Dr Chee is, I think, speculative.

190.  Under cross-examination, Mr Tse drew in the box his exit route for Flat 17J and produced it as Exhibit A14, which route, though not as short and direct as that postulated by Dr Chee, could well, I think, by reference to Diagram 4 of 1976 MOE COP and other approved plans with similar layouts to the Approved Plans and units therein, explain why the Kitchen Door could be considered by BA (and by the Architect Firm) as not adjacent to the exit route of Flat 17J.

191.  Though the unit used in Diagram 4 of 1976 MOE COP is an outdated tenement house by today’s standard and the kitchen therein is not separated from living and/or dining room as it common today, the single exit route for occupant therein, one observes, runs “right in front of” the kitchen before one enters the protected staircase.

192.  In comparison, the exit route drawn by Mr Tse on Exhibit A14 does not, I note, pass “right in front of” the Kitchen Door.

193.  Hence, I find it appropriate for Mr Tse to take Diagram 4 of 1976 MOE COP into account as an example/reference[77] in considering the Adjacency Issue of the Kitchen Door.

194.  To the contrary, Diagram 1 of 1986 MOE COP Dr Chee referred, and relied, to in the Joint Report, I am afraid, does not assist us on the Adjacency Issue. As Dr Chee agreed with Mr Mui, this Diagram 1 has no kitchen at all and its focus was solely on “protected staircase”.

195.  In my view, the weightiest piece of evidence that the Kitchen Door was considered not to be adjacent to exit route of Flat 17J is the “absence” of D2 door mark on the Kitchen Door on Drawing G14.

196.  For reasons below, I accept Mr Mui’s submission (and Mr Tse’s corresponding opinion) that the above “absence” of D2 door mark on the Kitchen Door on Drawing G14 is more likely the result of a “conscious design choice” of the Architect Firm and a “conscious approval decision” of BA in processing the Approved Plans, and unlikely a matter of “drawing technique” as Dr Chee suggested.

(1)  To start with, as Dr Chee confirmed in his report, the above absence in Drawing G14 is not, he said, an “omission (遺漏)” or “mistake (錯誤)” (it does not matter, I think, that Mr Tse fairly answered Mr Chok that he “did not rule out” mistakes being made by BA in approving plans in general).

(2)  According to legend on Drawing G1, there are as many as 11 door marks (door marks D1 to D11) that could be used on Drawing G14, with each of them making up a different combination of building material and FRP. Had the Architect Firm and/or BA intended to provide one of these door marks for the Kitchen Door, they ought, one thinks, to make their intention clear by putting down that particular mark on the plan and not leave the Kitchen Door entirely empty of any door mark.

(3)  When Dr Chee was asked by Mr Mui how one could tell that the Kitchen Door was intended to have door mark D2 and not one of the other 10 marks, Dr Chee was forced to answer that one should look at “similar units (類近單位)” on the same floor.

(4)  Units H, C and D have similar “layout” (and are “mirror image”) to that of Flat 17J on Drawing G14. Significantly, kitchen doors of the former 3 units also do not bear any door mark like that for Flat 17J. In contrast, the remaining units on the same floor having different “layout” to that of Flat 17J on Drawing G14 do bear D2 door mark on all their kitchen doors.

(5)  The 2 Experts, I note, both opined that “fundamental safety issues” of MOE and FRC would be checked by BA in processing plans lodged by AP for approval and that any deficiency in such respects would be pointed out by BA for AP to remedy. Indeed, the case of Building Authority v Appeal Tribunal (Buildings), Huen Wai Man & Chung Sau Wan and Others[78] cited by Mr Chok also suggests that BA, before giving its approval under s.14(1) of BO, would ensure that, inter alia, prevailing “fire safety” requirements have been complied with.

(6)  Dr Chee himself has also produced in his report PN ADM-19 to prove that BA would process plans lodged by AP in above manner. He also admitted in the box that AP in drafting its plans, and BA in giving its approval, would both consider and make its own judgment on the Adjacency Issue. Mr Tse also gave similar evidence in the box.

(7)  As such, though drawing technique may, as Mr Chok urged at para 47 of his written closing submission, be unique to particular architect firm, BA’s approval standard and practice is, on the common opinion of the 2 Experts, uniform and applied across the board.

(8)  Hence, “absence” of D2 door mark for the Kitchen Door is, I think, on the said common opinion of the 2 Experts, more likely than not a “conscious approval decision” made by BA and a “conscious design choice” of the Architect Firm.

(9)  That similar pattern of door mark not appearing at kitchen doors of units with “layout” similar to Flat 17J (but appearing at kitchen doors of units with “layout” different from that of Flat 17J) was found at approved building plans of 2 other PSPS projects prepared also by the Architect Firm as AP at about same time of the Approved Plans (and with similar # Sign Floor Layout to Block 1 of the Estate) [79] reinforces, I think, Respondents’ contention that such pattern was a “conscious design choice” and a “conscious approval decision”.

(10)  Finally, Dr Chee, I note, admitted to Mr Mui in the box that he could provide no other example of his so-called “not uncommon drawing technique (不是不普遍的繪圖手法)” of not putting down door mark at every kitchen door despite he claimed that all 10 kitchen doors of all 10 units on Drawing 14 are “adjacent” to their respective exit routes.

197.  Considering all matters in this section and in next 2 sections, if applicable, I prefer Mr Tse’s opinion, including exit route drawn by him at Exhibit A14 (and accept Mr Mui’s submission) and find that the Kitchen Door not “adjacent” to exit route of Flat 17J. It was, I further find, not designed by the Architect Firm to be fire-resistant or self-closing. Nor was it approved by BA, or built, as such.

198.  In this connection, I have not overlooked Clause 2(xxxiii) of the Conditions at [78], which provisions was, however, not mandated by BA under BO regulations or COPs but by the government as landlord as part of the grant of the Land. In any event, Clause 2(xxxiii) again applies only if the kitchen door of a particular unit is “adjacent” to the exit route of that unit. As I find above, the Kitchen Door is not “adjacent” to the exit route of Flat 17J.

E  The 2 Kitchen Walls - the FRP Issue

199.  On this issue, I first have great reservation about Dr Chee’s opinion at [68(1)] that, by reference to their alleged enlarged markings on Drawing G14 after it was magnified, the 2 Kitchen Walls were made up of Solid Concrete Block (SCB).

(1)  According to Drawing G1, SCB is, Dr Chee agreed with Mr Mui, marked by “XXX” with dots inside while Hollow Concrete Block (HCB) is marked by “XXX” alone. Such enlarged markings of the 2 Kitchen Walls after magnification relied by Dr Chee in his expert report are, one observed, not only very blurry but also, he agreed with Mr Mui, are “XXX” in fact without dots inside (that is indicative of the said 2 walls made up of HCB as Mr Tse suggested in his evidence).

(2)  Nonetheless, Dr Chee denied Mr Mui’s suggestion that the 2 Kitchen Walls are not made up of SCB. He insisted that HCB must at least be 200mm thick and could not be 75mm thick (the 2 Experts both agreed that the 2 Kitchen Walls are 75mm thick).

(3)  In response, Mr Mui was quick, I note, to refute Dr Chee’s claim above by showing him Table A of Third Schedule of 1985 B(C)R relied by Dr Chee himself at [68(4)], where one can find references to HCBs with thickness less than 200mm, including 75mm thick.

(4)  While agreeing with Mr Mui that the above Table A does provide for 75mm thick HCB, Dr Chee purported to explain that he has “never seen 75mm HCB in construction site in his life-long experience” and that 75mm-thick HCB could not “stand on its own” (Mr Tse, I note, disagreed and gave evidence to the contrary when Mr Chok put the said suggestion of Dr Chee to him).

(5)  As Mr Mui stressed and I agree, the above Table A not only provides for HCBs with different thickness, but also provides for different FRPs for HCBs with different thickness. That casts much doubt, I think, on Dr Chee’s opinion at [68(1)], his denial in (2) above and his alleged life-long experience in (4) above.

200.  Similarly, Dr Chee’s opinion by reference to “his alleged own practice and experience as AP” at [68(6)] is, I think, also doubtful given that, as Mr Mui submitted, Dr Chee had himself at para 90 to 92 of his own report gave a number of reasons other than FRC (like economic, practical and commercial ones) why “concrete blocks” came to replace “clay bricks” to become popular choice of building materials in local construction industry since 1970’s.

201.  Hence, even if the 2 Kitchen Walls were made of “concrete blocks”, be it SCB or HCB, it could well, as pointed out by Mr Tse in the Joint Report and I agree, be for reasons other than FRC requirement (if such requirements existed at all by way of applicable regulations or COPs at the time of the approval of the Approved Plans or the carrying out of the 1996 Works).

202.  For similar reason, Table A of Third Schedule of 1985 B(C)R (which has already been removed by 1990 B(C)R by the time of the 1996 Works) relied upon by Dr Chee at [68(4)] also, I accept, by no means proves that the 2 Kitchen Wall were built with 75mm-thick SCB, if at all, in order to provide for 1-hour FRP[80].

203.  The above Table A, by its name (and Dr Chee agreed with Mr Mui), only provides for “minimum requirements for construction and materials to be capable of resisting the action of fire for specified period (bold and italics supplied)” and no more. It gives no clue to the motive of the designer, or the builder, of the 2 Kitchen Walls in using 75mm-thick SCB, if it be the case.

204.  And, as Dr Chee admitted in his report, on Drawing G14, the walls separating bedrooms of Flat 17J are of the same materials and construction as those of the 2 Kitchen Walls. But, as Mr Tse pointed out in the Joint Report and I accept, there was no prevailing FRC requirement for walls separating bedrooms. Hence, if it be the case that the walls separating bedrooms of Flat 17J were built with 75mm-thick SCB not for the purpose of complying with any applicable FRC requirement, so could the 2 Kitchen Walls, if they be built with SCB at all.

205.  The indisputable fact before me is that, according to Mr Tse’s historical account at [46] to [54] of changes in BO regulations and COPs  from 1976 to 1996 (but prior to the taking effect of 1996 FRC COP), there was no specific provision requiring kitchen wall (or door) of domestic unit (as distinct from kitchen in commercial restaurant) to be fire-resistant for any period. Dr Chee has not, I note, pinpointed any specific regulation or COP provision to that effect during these 2 decades.

206.  The above historical account is therefore, I think, more consistent with FRC requirement for kitchen of domestic unit being “raised” or “introduced” by 1996 FRC COP (which, however, did not apply to the 1996 Works) and contrary to Dr Chee’s opinion at [68(9)].

207.  After all, as Mr Mui graphically submitted on the next point below and I agree, domestic kitchens are certainly not “rare unicorns” in Hong Kong that could escape the attention of drafters of regulations or COPs if they saw fit to make specific provisions for the same.

208.  The same observation above apply, I think, with equal force to discredit Dr Chee’s reliance of 1990 B(C)R and 1985 B(C)R at [68(2)&(3)] and his opinion of “kitchen” being a designated area of “special hazard” in 1994 FSI COP at [68(8)]. In my view, all three of them cannot hold water.

209.  Dealing first with 1990 B(C)R and 1985 B(C)R,

(1)  Dr Chee admitted at para 71 of his expert report that he found no provisions in 1990 B(C)R that described “kitchen” and “living room” as 2 distinct uses to require two distinct “fire compartments”.

(2)  Under cross-examination, Dr Chee also conceded that there is no provision in 1985 B(C)R that described “kitchen” and “living room” as 2 distinct uses or units. Neither in first column entitled “Use” in Table XLIII of 1985 B(C)R can one find “kitchen” or “living”.

(3)  Item 3 in first column of Table XLIII of 1985 B(C)R in fact reads “Office or domestic purposes; schools; hospitals”. Second column of the same reads “Volume, or floor area in any 1 storey (as the case may be) (bold and italics supplied)”.

(4)  By reg.184(1) of 1985 B(C)R, each element of construction[81] in a building or compartment of a building[82] shall have an F.R.P.[83] not less than that specified in Table XLIII appropriate to the use and the volume, or floor area in any one storey, as the case may be: Provided … (bold and italics supplied)”.

(5)  Dr Chee agreed with Mr Mui that AP is required to make calculations in area or volume of “fire compartments” in submitting plans for approval by BA. Cross-examined on a “fire resistance requirements for elements of construction” table in Drawing G1, Dr Chee admitted that the volume[84] and area[85] figures below the column of “compartment of building” for Block 1 represent the volume and area of one single storey and not that of a “kitchen” within a flat. The “fire compartment” that the Architect Firm has defined for the Estate by Drawing G1, Dr Chee conceded, does not include a “kitchen”.

(6)  By reason of (1) to (5) above, I have no hesitation accepting Mr Tse’s contrary opinion that domestic kitchen and other parts of a flat with the Estate are treated as same “use” on the Approved Plans and considered to be within one single fire compartment and there is no need of separate fire compartments for them (not to mention that the 2 Kitchen Walls are not loading bearing and thus cannot be “elements of constructions” under reg.182 of 1985 B(C)R).

210.  Dealing then with area of “special hazard” designated in 1994 FSI COP, I have no doubt, as Mr Tse opined to the contrary, that it does not include “kitchen of a domestic unit”.

(1)  While “Group I” “designated area of special hazard normally within a building” at para 3.2 of 1994 FSI COP includes “kitchens”, para 4.34 of the same COP headed “kitchen” specifically ruled out its application to “domestic kitchens” by employing the clear and unequivocal words of “(other than kitchens in domestic premises)”.

(2)  Dr Chee admitted at para 109 of his expert report that domestic kitchen is not required to be equipped with any specified fire service installations in 1994 FSI COP.

(3)  When the Architect Firm submitted its plans for approval by BA, it had, Dr Chee agreed, designated, for example, “Pump Room” and “Transformer Room” on G/F of the Estate as “Special Hazard” by words to that effect on Drawing G1. But one cannot find on the said drawing any express designation of “kitchen” as “Special Hazard”.

211.  For reasons in this section and, if applicable, those in the next section, I prefer Mr Tse’s opinion to those of Dr Chee on this FRP Issue. Prior to the taking effect of 1996 FRC COP, there was, I find, no applicable FRC requirement for wall (or door) of domestic kitchen by way of BO regulation or COP. I find that the 2 Kitchen Walls were not approved by BA, nor designed by the Architect Firm, to be fire-resistant and they were never so built.

F  the Safety Issue

212.  Mr Chok has cross-examined Mr Tse (and submitted at length at para 39.4 to 40.2 of his written closing submissions) that domestic kitchens like the Kitchen are “other areas of high fire risk” as per para 11.3 of 1989 FRC COP at [70(1)] and that, as per Dr Chee’s opinion, removal of the 2 Kitchen Walls and the Kitchen Door in the 1996 Works had increased fire safety risk to occupants of Flat 17J and other users of Block 1 of the Estate.

213.  For the following reasons, I reject Mr Chok’s submissions above.

(1)  Reading para 11 of 1989 FRC COP headed “Special Hazards” as a whole, I do not think that “kitchen in domestic premises” is included within para 11.3 thereof as submitted by Mr Chok at para 40.3 and 40.4 of his written closing submissions.

(a)  Were the drafters of the said COP of the view that “domestic kitchens” are “areas of high fire risk”, it could, one thinks, easily have been so provided in para 11. Para 11.2 of the said COP dealt only with commercial kitchen using the express words of “A kitchen attached to a restaurant should be...”. The drafter could, one thinks, have provided for domestic kitchen in para 11.2 as well by adopting it for “all kitchens” or made another clause specifically for domestic kitchen like that of para 11.2 for commercial kitchen, but with a shorter FRP if see fit.

(b)  Given that para 11.1 of the said COP cites a number of “special hazard”[86] areas, whose list may not, and could not, be exhaustive, clause 11.3 is, I think, a generic clause covering areas of “high fire risk” “other than those in para 11.1 and 11.2 above” as Mr Tse suggested in the box, where he gave innovative “hydrogen fuel cell” production in Science Park as an example that may fall within para 11.3.

(2)  I agree with Mr Tse’s opinion that, relatively speaking, domestic kitchen on its normal use or occupancy is not an area of “high fire risk”. While Mr Chok was at pains to point to Mr Tse that gas and kerosene are used by way of fuel in domestic kitchen, Mr Tse was, I think, equally right to stress that, unlike commercial kitchen attached to a restaurant, domestic kitchen is normally equipped with a single stove as the sole source of fire, and cooking therein is limited to a number of times in a single day.

(3)  With respect to Mr Chok, I do not find the above opinion of Mr Tse irrational as submitted by him. Neither do I think that Mr Tse has underestimated “fire risk” from domestic kitchen as he submitted. After all, “fire risk” is, I think, a relative concept, depending on, its chance of happening, the magnitude of such risk, and the extent of possible harm arising.

(4)  In the context of a domestic unit like Flat 17J, it is, one thinks, likely occupied by a single-family unit whose members are limited in number and who are familiar with the exit route of the unit. Cooking facilities, and fuel stored, therein would be limited, and such members would not cook as frequently as that carried out in a business serving the public found in a commercial restaurant.

(5)  In line with my view above, “kitchens in domestic premises” is, I note and find above, specifically excluded from being “areas of special hazards” in 1994 FSI COP and domestic kitchen and other parts of a flat with the Estate are treated as same “use” and there is no need of separate fire compartments for the two parts on the Approved Plans.

214.  For reasons below, I also reject Dr Chee’s opinion on the Safety Issue at [69] and Mr Chok’s related submissions at para 44.6 of his written closing submissions. Instead, I prefer and accept Mr Tse’s contrary opinion at [61].

(1)   On my findings on the Adjacency Issue, Self-Closing Door Issue and FRP Issue, removal of the Kitchen Door (which is not loading-bearing, non-structural, not fire-resistant nor self-closing, as it is not “adjacent” to the exit route of Flat 17J on Exhibit A14 drawn by Mr Tse) and of the 2 Kitchen Walls (which are also not loading-bearing, non-structural and not fire-resistant), the 1996 Works, I agree with Mr Tse, had not turned Flat 17J for the worse to become unsafe than it was the case before the said works was carried out.

(2)  The Curved Table erected in the 1996 Works in place of the 2 Kitchen Walls and the Kitchen Door is, I agree with Mr Tse, no different, and no worse off, from the latter two in terms of load-bearing capacity, structural stability, fire-resistant capacity or prevention of the spreading of smoke.

(3)  And I repeat the context I describe at [213(4)].

(4)  Regarding other occupants of, and visitors to, Block 1 of the Estate, on Drawing G14, the door of the Entrance was marked with door mark D2. Hence, such other occupants and visitors have, prior to and after the 1996 Works, the same half-an-hour period to escape to place of safety in the event of any fire happening within Flat 17J and are not worse off after the carrying out of the 1996 Works.

(5)  I therefore cannot agree with Dr Chee’s view stressed at para 46.8 of Applicant’s written closing submission on my findings and conclusions at sections D & E.

215.  Hence, I also answer the Safety Issue against the Applicant.

G  the Proviso Issue

216.  On my findings and determinations at sections D, E and F above, I accept Respondent’s case (and Mr Tse’s opinion) that the 1996 Works had not contravened any prevailing BO regulations or COPs on MOE, FRC or otherwise, including 1) para 11(a) of 1986 MOE COP; 2) para 11.3 of 1989 FRC COP; and 3) reg.90(b) of 1990 B(C)R contended by Mr Chok on the basis of Dr Chee’s opinion.

217.  Accordingly, the 1996 Works did not, I find, come within the proviso of s.41(3) of then BO.

H   the Crucial 1996 Works Issue

218.  As such, s.41(3) of BO prevailing in 1996 applied, I find, to make the 1996 Works “exempted building works” that did not require prior application for consent, or approval of plans, from BA on the part of the Respondents. The 1996 Works was, I find, not UBW made in breach of s.14(1) of prevailing BO as contended by the Applicant.

219.  The case of Joytex Development Ltd v Super Homes Ltd[87]relied by Mr Chok on this issue is, I think, distinguishable on 3 grounds:

(1)  The factual finding therein that BA approval was required for conversion of an enclosed kitchen into an open kitchen is based on the plaintiff’s unopposed expert evidence on liability adduced in that case;

(2)  no defence of “exempted building works” was run by the defendant in that case; and

(3)  the material transaction in that case happened more than a decade after the 1996 Works, by which time the applicable BO regulations and COPs have markedly changed.

Hence, it cannot assist the Applicant in the different circumstances, timing and evidence, of our case.

220.  On the Respondents’ expert evidence I accept in this case, I answer the Crucial 1996 Works Issue against the Applicant.

I.  Clause 4

221.  This clause at [77(1)] prohibits, I think, 3 matters: 1) structural alterations to private unit; 2) injury, damage, alteration or interference with main walls, beams, floors, common parts or common facilities of the Estate; and 3) alteration to any installation or fixture so as to affect or likely to affect supply of water, electricity, gas or other services.

222.  Considering para 68 to 71 of his written closing submissions, Mr Chok apparently, I think, relied on 1^st and 3^rd limbs above.

223.  The above 3^rd limb can be disposed of briefly. On my views and conclusions at [158] and [159], the Applicant has plainly, I think, failed to discharge its burden to prove the above 3^rd limb against the Respondents.

224.  Regarding the above 1^st limb, it is common ground between Mr Chok and Mr Mui that, according to The IO of Elite Garden v Profit More Co Ltd[88] , the words “structural alterations” in Clause 4 should be construed in their natural and ordinary meaning. "Structural" means something which involves the fabric of the house or building and it matters not whether the fabric in question is load bearing or otherwise.

225.  Mr Chok and Mr Mui differed on whether the 1996 Works affected the fabric of Flat 17J or the Estate. And I think that Mr Mui was right to submit that they did not.

226.  I arrive at the said conclusion based on the following:

(1)  I first repeat [223] above herein.

(2)  I also repeat [33] and [34] above herein. Under cross-examination, Dr Chee further agreed with Mr Mui that the removal of the Kitchen Door and the 2 Kitchen Walls caused no damage to the structure of the Estate.

(3)  I further repeat [216], [217], [214] and [215] above herein.

(4)  Hence, the Applicant has not, I think, made good para 70 of Mr Chok’s written closing submission that the removal of the Kitchen Door and the 2 Kitchen Walls had affected “the integrity of the fire safety system of Flat 17J and the Estate as a whole including means of escape, sufficiency of fire equipment etc.”.

(5)  Insurance coverage of the Estate also relied upon at the said above 70 of Mr Chok’s written closing submission has, I think, nothing to do with the fabric of Flat 17J or the Estate. If I am wrong on that, I adopt my views below about Clause 5 and the 2 Policies against the Applicant on this issue of Clause 4.

(6)  The 2 Kitchen Walls and the Kitchen Door separating the Kitchen from the living and dining rooms of Flat 17J are, I agree with Mr Mui, no different from the 4-inch-thick reinforced concrete non-load-bearing internal partition wall separating 2 adjoining units in Westlands Garden (IO) v Oey Chiou Ling[89], where the Court of Appeal found the latter not “an integral part of the building” and its removal not in breach of a DMC clause against “structural alteration” in similar terms to Clause 4.

(7)  At para 46 of the judgment of Westlands Garden, supra, Court of Appeal found Elite Garden, supra, having no relevance to an “internal partition wall” and that an “internal partition wall” is no different from “an internal partition wall making a bedroom”.

(8)  Westlands Garden, supra, was later followed and applied in Tam Sze Man v Shan Tsui Court (IO)[90], where Court of Appeal again held the removal of a non-structural partition wall separating 2 adjoining units[91] not in breach of a DMC clause against “structural alteration” in similar terms to Clause 4.

(9)  On the above 2 authorities and my findings, the 2 Kitchen Walls (and the Kitchen Door) making the Kitchen are, I think, not an integral part, nor the fabric, of the Estate or Flat 17J.

227.  Accordingly, the Applicant has, I think, failed to prove that the Respondents were in breach of Clause 4 by carrying out the 1996 Works.

J  Clause 21

228.  On my findings and conclusions above, the Respondents have, I think, proved that they were lawfully entitled under Clause 21 at [83] to remove the 2 Kitchen Walls (and the Kitchen Door) by way of the 1996 Works. As I concluded in last section, the 2 Kitchen Walls (and the Kitchen Door) are internal non-structural partition wall making the Kitchen. Their removal caused no structural damage nor interfered with the enjoyment of any other part of the Estate.

K  Clause 5, Clause 26 and Clause 2(xxxiii) of the Conditions

229.  On Applicant’s case, alleged breaches of these 3 provisions at [77(2)], [77(6)] and [78] relate solely to the Kitchen Door removed by the Respondents in the 1996 Works.

230.  On my findings, and conclusion, on the Adjacency Issue in section D, the Applicant has, I think, also failed to prove that the Respondents had caused the 1996 Works to be done in contravention of (or that they had failed to observe or perform) Clause 2(xxxiii) of the Conditions. As was said at [198], the Kitchen Door was, I find, not adjacent to the exit route of Flat 17J. Accordingly, both limbs of Clause 2(xxxiii) regarding MOE and FRC requirements do not, I think, apply to the Kitchen Door at all.

231.  Hence, the Respondents were not in breach of Clause 5 and Clause 26 as alleged by the Applicant at [79].

L  s.34H of BMO and Clause 11

232.  I can also briefly dispose of Applicant’s case on s.34H of BMO quoted at [77(4)]. The “deemed” obligation therein to maintain Flat 17J in good repair and condition would only come to be implied or come to be imposed on the Respondents as owners thereof, when the DMC does not impose such an obligation on them in the first place.

233.  But, on Applicant’s case, Clause 11 quoted at [77(3)] does impose an obligation on the Respondents as owners of Flat 17J to maintain it in good repair and condition “to the satisfaction of the Manager and in such a manner so as to avoid any loss, damage, nuisance or annoyance to the Owners or occupiers of any other part or parts of the Estate”.

234.  Hence, s.34H of BMO, I think, never comes into play in this case as alleged by the Applicant.

235.  Mr Chok submitted at para 80 of his written closing submission that Respondents’ failure to keep Flat 17J in good repair and condition “includes not retaining UBW” within their unit. He cited [24] of Silver King China Ltd v Huy Yun Shiu[92] in support of his submission and added that “the UBW in the present case would lead to enhancement of fire risk (and the widespread thereof) and the lack of coverage of insurance in case of fire arising from UBW”. This, said Mr Chok, “contradicts the spirit” of Clause 11.

236.  For reasons below, I cannot agree with Mr Chok on his submissions above.

(1)  The 1996 Works are not UBW on my findings. They were “exempted building works” not requiring prior approval or consent from BA and their carrying out was not in breach of s.14(1) of prevailing BO.

(2)  On my findings, there has been no “increased” fire risk because of the 1996 Works.

(3)  As shall be seen below, the coverage of the 2 Policies, I find, remained intact at all material times.

(4)  On my findings, the 1996 Works caused no damage, nuisance or annoyance to other owners or occupiers of the Estate.

(5)  Mr Chok’s submission does, I think, violence not only to the language of Clause 11 but also the spirit of Clause 11. The “active” carrying out of the 1996 Works, and the Conversion made, by the Respondents can by no means, I think, be described as their “failure” to maintain Flat 17J in good repair and condition. They never, I think, let Flat 17J  fall into disrepair in the first place as Clause 11 was drafted to prevent but, to the contrary, they improved or decorated Flat 17J shortly after their purchase of it from the Developer in August 1995, as the 2^nd Respondent explained to Mr Chok in the box why she engaged contractor to carry out the 1996 Works.

(6)  Silver King China Ltd, supra, cited by Mr Chok does not, I think, assist him for the following reasons:

(a)  The focus, or issue, in that case is whether the action should be stayed in favour of arbitration by reason of arbitration clause found in subject deed of mutual covenant.

(b)  At [24] of the decision, the court was, I think, only considering whether plaintiff’s pleaded causes of action for alleged breach of s.34H of BMO and/or alleged failure to repair under deed of mutual covenant falls within the ambit of the arbitration clause in question.

(c)  Thus, the court never decided if the above pleaded causes of actions are viable or not.

237.  Hence, the Applicant failed, I think, as well to prove its case under s.34H of BMO and Clause 11.

M  Clause 20 and Part 3 of House Rules

238.  Considering parties’ pleaded case below, I have no doubt that Mr Mui is right to submit that the burden falls on the Applicant to prove that the House Rules had been made pursuant to the DMC (and that the Respondents were made aware of, or issued with, the same) prior to the carrying out of the 1996 Works.

(1)  At para 9 of RANOA, the Applicant first pleaded, and relied on, Clause 20 quoted at [77(5)].

(2)  At para 10 of RANOA, the Applicant next pleaded, and relied on, Part 3 of House Rules quoted at [81].

(3)  By para 4 of RANOO, the Respondents averred that they have no knowledge of the matters in para 10 of RANOA, did not admit, and required the Applicant to prove, the same.

(4)  At para 10 of its Amended Reply, the Applicant asserted that the Respondents ought to know of its power to make House Rules under the terms of the DMC and further averred that every owner of the Estate had been issued with the House Rules and/or made aware of its major provisions, including those of the Application Form at [105].

239.  I further agree with Mr Mui that the Applicant has not discharged the aforesaid burden for the following reasons:

(1)  The House Rules produced at trial by Ms Yau was “undated” and issued by Chevalier, which is admittedly not the First Manager of the Estate under the DMC i.e. Rich Fortress: see [24] and [80].

(2)  Land searches of Flat 17J produced at trial gave no clue when Chevalier was appointed manager of the Estate.

(3)  I repeat evidence of Ms Yau at para 22 of her witness statement at [155(1)], where she added that “the Applicant would not agree to alteration made in breach of the DMC. This was clearly set out in the House Rules, as well as set out in the Application Form”. For my reasons therein, I give no weight to the said evidence.

(5)  In the box, Ms Yau fared no better. She only claimed that Chevalier was the manager of the Estate before the Applicant was incorporated in 2010. But she admitted that she had no idea when Chevalier was made the manager of the Estate.

(6)  For 2^nd Respondent on this issue, I repeat and accept her unopposed evidence at para 7 and 8 of her witness statement at [157]. Mr Chok never cross-examined her to suggest that she knew of, or was issued with, House Rules prior to carrying out of the 1996 Works.

(7)  Indeed, when the 2^nd Respondent was questioned by Mr Chok about the Application Form she signed in 2024, she replied (and I accept) that the said form (whose version date was in June 2023) did not exist when she carried out the 1996 Works.

(8)  The DMC was executed by the Developer and Rich Fortress in July 1995. The Respondents, it should be remembered, became first registered owners of Flat 17J after their purchase from the Developer in August 1995. The 1996 Works were carried out soon thereafter in early 1996 but no later than February 1996.

240.  If I am wrong on my conclusion above, the only case of the Applicant at para 19(1) & (4) of RANOA on Clause 20 and Part 3 of House Rules (and at para 85 of Mr Chok’s written closing submission) is that the Conversion had no prior approval from BD and other relevant authorities[93]. On my findings and conclusions above, no such prior approval from BD or other relevant authorities was required for the Respondents to pull down the internal non-load-bearing and non-structural partition wall making the Kitchen inside Flat 17J.

241.  Hence, the Applicant has not, I think, made out its case on Clause 20 and Part 3 of House Rules either.

N  Clause 5 and the 2 Policies

242.  On my findings and conclusions above, the Applicant has, I think, also failed to prove that the Respondents were, by reason of the 1996 Works, in breach of any statutory provision, requirement, regulation or notice given by FSD, BD or other authorities so as to cause the Applicant or themselves in breach of the respective “legal requirements warranty” in 2023 Ping An Policy at [89] and 2024 China Pacific Policy at [95].

243.  Hence, there was, I find, no risk that the 2 Policies (or any of them) may become void or voidable, or that premium payable thereon may be increased.

244.  Regarding evidence of Ms Yau at para 12 of her witness statement and 2 emails both dated 20 November 2023 passing between Ms Connie Lok of the Management Office (Connie) and the broker of the 2023 Ping An Policy by the name of “Sunflower” (the Broker) she produced at trial, such evidence does not, I think, assist Applicant’s case on Clause 5 at [77(2)] and the 2 Policies for the following reasons:

(1)  First, they do not relate to 2024 China Pacific Policy. No evidence from China Pacific or its broker regarding alleged effect of the 1996 Works on 2024 China Pacific Policy is forthcoming.

(2)  Second, alleged written confirmation direct from Ping An proving that 2023 Ping An Policy would be void or voidable by reason of breach of the DMC due to the Conversion as alleged by Ms Yau at para 12 of her witness statement (if she so meant it) was not produced at trial.

(3)  If Ms Yau meant that the Broker gave the above written confirmation on behalf of Ping An, such confirmation was, I note, given based on Connie’s unparticularized claim in her preceding email that the Conversion was in alleged breaches of the DMC, BD regulations and fire services regulations, which has now turned out to be unfounded on my findings and conclusions above.

(4)  In any event, the Broker replied Connie by reference to alleged “exclusion clause (不保事項)” of 2023 Ping An Policy. No exclusion clause of the 2 Policies was in fact relied upon by the Applicant in RANOA. Such alleged exclusion clause of 2023 Ping An Policy, if existed at all, was never produced at trial. The exclusion clause that Mr Chok relied at para 77 and 78 of his written closing submissions was found in 2024 China Pacific Policy adduced at trial and not in 2023 Ping An Policy adduced at trial.

245.  For reasons given in this section, the Applicant therefore, I also conclude, has failed to prove its case on Clause 5 and the 2 Policies against the Respondents.

O  Summary on alleged breaches caused by the Conversion

246.  For my conclusions in sections I to N above, the Applicant has failed to prove all its alleged breaches of the DMC and BMO (and alleged breaches of the Conditions and House Rules) allegedly caused by the Conversion in the 1996 Works against the Respondents.

247.  I find that the Respondents was lawfully entitled under Clause 21 to remove the 2 Kitchen Walls and the Kitchen Door in the 1996 Works without prior approval or consent of BA given under s.14(1) of prevailing BO. The 1996 Works are, I find, not UBW but “exempted building works” under s.41(3) of prevailing BO.

P   Unnecessary to rule on two issues on the 2024 Works

248.  As conceded by Mr Chok at para 10 of his written closing submissions, once this court finds the 1996 Works not being UBW, there is no need to deal with parties’ issues on the 2024 Works. Given that this court has so found, there is strictly, I agree with him, no need for this Tribunal to resolve 2024 Approval Issue and 2024 Reinstatement Issue.

249.  But, in case my determination of the Crucial 1996 Works Issue is held to be wrong should this case go further, I also deal with the above 2 issues on the 2024 Works below.

P1  2024 Approval Issue (if required to be resolved)

250.  While Dr Chee was right, I think, to say at [139(1)] that erection of the New Kitchen Door is, unlike erection of the 2 New Kitchen Walls, not minor works under B(MW)R, he also admitted to Mr Mui under cross-examination that “nothing is to be filed with BD in erecting a door (掛一道門，基本什麼也不用入)”[94].

251.  Considering the provisions of MWCS in section B10, I agree with Dr Chee’s view at [139(2)] that, prior to submission of notification of completion of minor works to BA pursuant to simplified requirements of the same, BD does not approve or verify if the said works comply with applicable substantive requirements of BO and its regulations (as confirmed in this case by BD’s disclaimer in its letter dated 23 August 2024 to May Tik at [112]).

252.  But, having regard to same provisions above, I agree with Mr Tse’s view at [140(3) & (4)] that there are mechanisms in MWCS by way of BD’s random check of submitted documents, BD’s demand (or order) for rectification and even BD’s criminal prosecution against registered contractor concerned to ensure that there is no contravention of BO and its regulations.

253.  As explained by Mr Tse at [140(3)], documents to be submitted under “simplified requirements” of MWCS under BO do not include certificate of fire-proof materials. Hence, it is, I think, not surprising that copy certificates of fire-proof materials enclosed to AP Wong’s letters at [113 & 114] were not submitted by May Tik together with MW05 to BD as observed by Dr Chee at [139(3)].

254.  Looking at contents of MW05 and without hearing AP Wong in the box, I share Dr Chee’s doubt at [139(4)] whether AP Wong had played any active role in the 2024 Works pursuant to simplified requirements of BO.

255.  But BD was not, I think, completely in the dark on receipt of MW05 about the changes done to the Kitchen after completion of the 2024 Works. Looking at its photos taken prior to and after completion of said works enclosed to MW05 at [111], BD could, I think, come to know that the former 3-sided “open” kitchen had been turned into a 4-side rectangular “enclosed” kitchen after completion of Part III minor works reported to it and could, if see fit, carry out thereafter necessary checking of the Approved Plans etc. to see whether the said plans and/or any applicable prevailing substantive requirements of BO and its regulations had been breached in the past and/or on this occasion.

256.  As I have explained at [173-177], Dr Chee’s opinion (and Mr Chok’s related submissions) on “purpose” of the 2024 Works to “remedy” irregularities of the 1996 Works and/or to “reinstate” the Kitchen is, I think, irrelevant to 2024 Approval Issue, all the more so on the contents on the face of MW05. May Tik never submitted MW05 in response to any order issued by BD under s.24 of BO against the removal of the Kitchen Door and the 2 Kitchen Walls in the 1996 Works (as there was none).

257.  In any event, on my determination of the Crucial 1996 Works Issue, the 1996 Works are not UBW. All opinions given by Dr Chee on such premises at [139(6) & (7)] cannot stand.

258.  What matters most at the end of the day is, I think, the erection of the 2 New Kitchen Walls conforms with specified technical requirements of Item 3.39 and that all other requirements of “simplified requirements” of MWCS under BO and B(MW)R had been complied with by May Tik on behalf of the Respondents in this case, including lodging of MW05 to BA to report of the same after its completion. Dr Chee did not, and could not, dispute the same. And nothing, Dr Chee confirmed, is to be filed with BD for erecting the New Kitchen Door. Approval of the 2024 Works by AP Wong or otherwise as alleged by the Respondents does not, I think, add anything of substance to resolution of this issue.

259.  Therefore, if it be necessary for me to do so, I would have also answered the 2024 Approval Issue in the negative and uphold Respondent’s case in RANOO that they were lawfully entitled to erect the 2 New Kitchen Walls in the 2024 Works as Part III minor works under “simplified requirements” of BO without prior approval or consent of BA. Their erection of the New Kitchen Door in the 2024 Works did not, I find, require prior approval or consent of BA either. The Respondents were not, I find, in breach of s.14(1) of BO in carrying out the 2024 Works in the manner they did.

P2  2024 Reinstatement Issue (if required to be resolved)

260.  On this issue, Mr Mui first took a pleading point at para 156 to 158 of his written closing submission to urge this Tribunal not to rule on Applicant’s complaints of the 5 Deficiencies, including alleged breaches of s.45 of Building (Planning) Regulations and Code of Practice for the Electricity (Wiring) Regulations (2020) Edition published by E&MSD, on the ground that these complaints were not found in RANOA (or Amended Reply) but surfaced only in the evidence of Dr Chee.

261.  Mr Chok responded by submitting that these complaints are relevant to whether the Respondents had “reinstated” the Kitchen by the 2024 Works (or whether the 2024 Works had “remedied” the 1996 Works), which the Applicant disputed. On the OP Issue Approach opined by Dr Chee, the Respondents had not “reinstated” the Kitchen by completing the 2024 Works.

262.  Notices of application and opposition are not pleadings at Lands Tribunal. S.10(5)(a) of Lands Tribunal Ordinance provides that the proceedings of the Tribunal shall be informal. Direction No 4 given by the President of the Lands Tribunal on 1 July 1986 states that presiding officers should not regard Notices as in the nature of pleadings by which parties are bound, but as an indication of the issues which are likely to be raised.

263.  Nevertheless, basic fairness requires that there should be advance notice of the points taken and issues raised and that no party should be prejudiced by being taken by surprise and having to deal with issues raised without a proper opportunity of preparing for them. The application of this principle, and the rigour with which ordinary rules of pleading may be applied by analogy, at Lands Tribunal depend on the facts and the procedures adopted in each case: [42] of Whole Grand Limited v IO of Bo Fung Building[95].

264.  For reasons below, I am prepared to rule on the above complaints raised only in the evidence of Dr Chee.

(1)  Mr Tse has himself considered s.45 of Building (Planning) Regulations in his expert report on the Crucial 1996 Works Issue.

(2)  Mr Tse had the opportunity to respond, and did respond, to the 5 Deficiencies in the Joint Report.

(3)  Mr Mui was also able to, and did, cross-examine Dr Chee on OP Issue Approach and the 5 Deficiencies at trial.

(4)  Mr Tse has even agreed with Mr Chok in the box that OP Issue Approach is the appropriate approach to be adopted in deciding the 2024 Reinstatement Issue, albeit he disagreed with Dr Chee about its application to the 5 Deficiencies.

265.  Nonetheless, I do not agree with the consensus opinion of the 2 Experts that the OP Issue Approach is the appropriate approach to be adopted in deciding the 2024 Reinstatement Issue in the particular circumstances of this case.

266.  My reasons are as follows:

(1)  By the 1996 Works, OP has already been issued for the Estate. The Conversion was carried out by the Respondents sometime after OP has been issued for the Estate.

(2)  The Applicant’s complaint at [8] is that the Conversion carried out in the 1996 Works (including removal of the Kitchen Door and the 2 Kitchen Walls) was not in line with the design of the Kitchen in the Approved Plans and that it was made without prior approval to plans and consent of BA under s.14(1) of BO.

(3)  It is not the Applicant’s complaint that OP was revoked or is liable to be revoked due to the Conversion carried out in the 1996 Works (and Dr Chee confirmed with Mr Mui in the box that he had not so meant in his expert report). By the Demand at [5], [91], [93] & [98], the Applicant sought Respondents’ “reinstatement” of the Kitchen as per its design on the Approved Plans only.

(4)  The defence of the Respondents at [11], [100], [113]-[115] & [117] is that they had met the Demand “reinstating” the Kitchen in line with the Approved Plans by erecting the New Kitchen Door and the 2 New Kitchen Walls in the 2024 Works.

(5)  The Applicant was, however, not satisfied that the 2024 Works either: see [116]. By seeking the Reinstatement Order at [10], the Applicant again sought against the Respondents in RANOA their “reinstatement” of the Kitchen in line with the Approved Plans with BA’s prior approval of plans and consent only.

(6)  The Applicant in effect, I think, demanded the Respondents to undo the 1996 Works by going through the statutory procedure under s.14(1) of BO for them. It required nothing to be done by the Respondents regarding OP of the Estate.

(7)  Were the 1996 Works required to have prior consent and approval of BA and held to be UBW for their absence on Applicant’s case, any demolition and/or alteration works that BA may order under BO, said Mr Tse and I agree, must be carried out as per the Approved Plans and no more. BA would not in such order, one thinks, revoke OP already issued for the Estate or require OP to be applied again for the Estate even in such scenario in Applicant’s favour.

(8)  Now that I have found in Respondents’ favour that the 1996 Works were “exempted building works” involving removal of 2 internal partition walls and a door, which are all non-structural, non-load bearing and not fire-resistant, OP is, I think, even more so on my findings irrelevant to this issue.

(9)  The entire dispute between the parties, including its context, their respective demands, contentions and relief sought, has therefore, I think, nothing to do with OP. Expert Issue No.7 that the 2 Experts are to give opinion on has also nothing to do with OP. So is, I think, 2024 Reinstatement Issue.

267.  To answer the 2024 Reinstatement Issue, on my findings that no utilities service of, or connecting to, the Kitchen had been altered in the 1996 Works, one needs, I think, only to ask whether the 2 New Kitchen Walls and the New Kitchen Door conform with the design of the 2 Kitchen Walls and the Kitchen Door on the Approved Plans in order to determine whether the Kitchen has been “reinstated” as per its original design in the Approved Plans.

268.  Answering the above question on the evidence before me, I have no doubt that the answer to 2024 Reinstatement Issue is in the positive as opined by Mr Tse.

269.  My reasons are as follows.

(1)  Dr Chee confirmed in his expert report that the 2 New Kitchen Walls and the New Kitchen Door were built at approximate locations of the 2 Kitchen Walls and the Kitchen Door shown on the Approved Plans.

(2)  I repeat, and accept, Mr Tse’s opinion at [150].

(3)  After completion of the 2024 Works, the Kitchen, I am satisfied, became again rectangular in shape having four sides on its approximate original boundary, and is “fully enclosed” as before from floor to ceiling, as per its original design on the Approved Plans.

(4)  Indeed, Dr Chee further admitted in his expert report that the 2 New Kitchen Walls and the New Kitchen Door are both fire-resistant and of acceptable quality and are largely in line with substantive technical requirements of 2011 FS COP and 2023 FS COP.

(5)  Mr Tse also opined in the Joint Report that the New Kitchen Door and the 2 New Kitchen Walls have compiled with 2023 FS COP, if they are applicable to this case. The New Kitchen Door, said Mr Tse in his expert report and I accept, is fire-rated and self-closing, and the 2 New Kitchen Walls are made of fire-resistant materials.

(6)  As such, the 2 New Kitchen Walls and the New Kitchen Door as erected in the 2024 Works are, as contended by the Respondents and I accept, even better than the original design of the 2 Kitchen Walls and the Kitchen Door under the Approved Plans in terms of FRC and MOE requirements (there was, of course, no such prevailing requirement for the latter two on my findings above).

270.  If, contrary to my views above, OP Issue Approach is the right approach to determine the 2024 Reinstatement Issue, I would have also answered the said issue in the Respondents’ favour in the positive on the following grounds:

(1)   Dr Chee admitted to Mr Mui that uneven floor or otherwise is nowhere found on the Approved Plans. I therefore agree with Mr Tse that this deficiency is simply irrelevant to 2024 Reinstatement Issue. In addition, Dr Chee had not, I note, spelt out alleged “BO standard” that he relied upon for his opinion that this is an alleged “material” consideration for BD to consider whether to issue OP. For this additional reason, I also reject this unsupported claim of Dr Chee.

(2)   Next, I accept Mr Tse’s opinion in his expert report that reg.45(2) of Building (Planning) Regulations had been complied with in the 1996 Works and maintained until after completion of 2024 Works to the extent that all internal wall surfaces of the Kitchen have been “faced with tiles (鋪砌瓷磚)” in line with that regulation[96]. “faced with tiles” is, I think, an alternative to “non-absorbent material” under the said regulation.

(3)   In any event, “cement mortar not less than 12.5 mm in thickness” is, I also think, another alternative to “non-absorbent material” under reg.45(2) of Building (Planning) Regulations. For para 166 and 167 of Respondents’ written closing submissions, I reject Dr Chee’s evidence that the internal wall surfaces of the Kitchen are not rendered with “plastering” of appropriate thickness and accept the contrary evidence given by Mr Tse in the box.

(4)   Dr Chee also admitted in his expert report that there was gas supply to the Kitchen. Provisions of “cooking slab (灶台)”, which is outdated by modern standard, is thus, I agree with Mr Tse, exempted under reg.45(3)(a) of Building (Planning) Regulations.

(5)   Dr Chee further agreed with Mr Mui that a hole was left on the “damaged” tabletop of the Kitchen as gas stove had, temporarily, been removed from it (it was so arranged, said the 2^nd Respondent and I accept, after she and 1^st Respondent emigrated overseas leaving Flat 17J vacant). I accept Mr Tse’s evidence that gas stove could easily be re-installed in such space now found in the said hole in future if required.

(6)   For (2) to (5) above, I do not agree with Dr Chee that the Kitchen was lacking in “kitchen accommodation” in alleged breach of the general provision of reg.45(1) of Building (Planning) Regulations, whose working details are, I think, set out in reg.45(2) & (3).

(7)   Having seen photo of floor drain provided by the Respondents in the Joint Report, Dr Chee admitted in the box that the said floor drain had been obstructed on the day of his inspection and went unnoticed by him. He thus never inspected or tested the said floor drain. He agreed with Mr Mui in the box that he therefore cannot confirm whether the said drain had been installed in line with approved drainage plan without damaging water proofing layer.

(8)   Taken at its highest, Dr Chee’s evidence above is, I think, no more than that he had, in his own words, “a question mark” (我有一個疑問) on the said question in (7) above he posed but unanswered by himself.

(9)   Electrical works, Dr Chee agreed in the box and I find, are not matters covered by the Approved Plans. Considering Code of Practice for Electricity (Wiring) Regulations (2020) Edition he relied upon, they are, I think, plainly within the responsibility of E&MSD and not that of BD. I agree with Mr Tse that the same is not governed by BO. This deficiency is, I also agree with him, irrelevant to the 2024 Reinstatement Issue.

(10)   In so far any one or more of 5 Deficiencies are relevant, not exempted and still outstanding after completion of the 2024 Works, having regard to the overall conditions of the Kitchen on all post-completion photos produced before me at trial, I do not think it likely (and I reject Dr Chee’s contrary opinion) that BD would decline issue of OP for the Kitchen when these outstanding matters, if any, could easily be sorted out by would-be users of the Kitchen by way of internal fitting-out works to the same.

Q  Remedies sought by parties

271.  As a result of my conclusions regarding the Crucial 1996 Works Issue at section H and Clause 21 in section J, the Applicant is, I think, not entitled to First Declaration it sought. The Respondents were, I find, entitled to covert the Kitchen without prior approval of plans or consent from BA as they did.

272.  For my conclusion of 2024 Approval Issue at section P1, the Applicant is, I think, not entitled to Second Declaration either. The Respondents were, I find, also entitled to carry out the 2024 Works without prior approval of plans or consent from BA as they did.

273.  By reason of the aforesaid, the Applicant is further, I think, not entitled to the Reinstatement Order that it sought. It has failed to prove various breaches of the DMC and BMO it alleged against the Respondents as I have decided in sections I, K to N above. In any event, the Respondents had, I find, also “reinstated” the Kitchen as per its original design in the Approved Plans by way of the 2024 Works on my conclusion of 2024 Reinstatement Issue at section P2.

274.  As such, the Applicant is not, I think, entitled to damages it sought against the Respondents in RANOA, not to mention it has failed to adduce any evidence to prove the quantum of damages that it has suffered as a result of alleged breaches of the DMC and BMO committed by the Respondents.

275.  To the contrary, as conceded by Mr Chok at his oral closing submission, should the Applicant’s claim fail, the Respondents are, I agree with him, entitled to have Applicant’s registration of these proceedings against Flat 17J at the Land Registry vacated.

R  Disposition

276.  I therefore order that Applicant’s claim be dismissed and that the Applicant do forthwith at its own costs vacate registration of these proceedings against Flat 17J owned by the Respondents at the Land Registry.

S   Costs

277.  I make an order nisi following the event that, save and except for previous costs orders which shall all stand, the costs of these proceedings, including all reserved costs, the costs of this trial together with certificate for counsel, be all paid by the Applicant to the Respondents to be taxed at District Court scale if not agreed.

278.  The above order nisi shall become absolute if none applies by filing Form 1 to vary the same within 14 days of handing down of this judgment. Any such application to vary the said order nisi will be disposed on paper by this Tribunal[97].

T  Postscript

279.  It can be seen from this judgment that FRC and MOE requirement, if any, applicable to kitchens of domestic flats by way of prevailing BO regulations and related COPs had undergone marked changes in the 5 decades since 1976.

280.  Contents of approved building plans of other estates, it should also be noted, might well be different from those of the Approved Plans. They might also have been approved at a different time from that of the Approved Plans. Provisions of deeds of mutual covenants and conditions of grant of other estates might also be different from those of the Estate. And expert evidence called in other proceedings might also be different from that called in this case. Last, but not least, similar conversion into open kitchen in other estates might also have been carried out at a different time from that of the Conversion.

281.  Hence, readers of this judgment should, I caution, not take it to shed much light on how our courts and tribunals would deal with other similar conversions carried out in other estates, or even in the Estate, in the past, today or in the future.

282.  In retrospect, seeking advice from building professionals and/or the authorities and/or consulting approved plans, deed of mutual covenants and conditions of grant of the estates concerned should preferably be done before an owner converts enclosed domestic kitchen into open kitchen and before a corporation takes out costly, if not risky, proceedings against the owner responsible for such conversion.