BUILDING AUTHORITY v. OWNERS OF THE ILLEGAL & STRUCTURES ON THE ROOF OF 9/F., AND ROOF ABOVE FLATS A1 & A2 ON 10/F., 105 AUSTIN ROAD, PAK ON BLDG., KOWLOON (K.I.L. 2302)

HEADNOTE

PUBLIC LAW - Buildings Ordinance (Cap. 123) - whether “illegal roof-top structure” a “building” - whether validity of Demolition Order can be challenged at hearing of application for Closure Order -

Held : (1) merely to describe the subject-matter of a Closure Order as an "illegal structure" is insufficient, since not every "structure" is a “building” within the definition in section 2 (1) of Cap. 123.

(2) in order to obtain a Closure Order under section 27(1) (a)(ii) of Cap. 123 to carry out work which the Building Authority is “empowered to carry out” it is sufficient to show that the Demolition Order has not been complied with; the validity of that Order cannot be questioned in the District Court on the grounds of “illegality” or "irrationality”.

(3) on the facts, the roof-top structures were “buildings” since they formed part of the building on which they rested or were erected.

IN THE DISTRICT COURT OF' HONG KONG

CIVIL JURISDICTION

MISCELLANEOUS PROCEEDINGS NO. 275 & 512 OF 1987

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REASONS FOR DECISION

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1. On the 17th January 1985, the Building Authority (“the Authority”) made a demolition order in respect of structures erected on the roof of the Pak On Building at 105 Austin Road, Kowloon. On the 23rd March 1987, the Authority sought a Closure Order under Section 27(1)(a)(ii) of the Buildings Ordinance (Cap. 123). The hearing of that application was adjourned by His Honour Judge Scriven, because the affirmation in support was defective and because an appeal to the tribunal established under Section 43 of Cap. 123 was still pending. (See MP275/S7).

2. Before the Authority had fully complied with the decision of the appeal tribunal, it made a further application for a Closure Order, which came before His Honour Judge Wilson on the 17th June 1987. should be called in support of the application at the adjourned hearing was wholly disregarded, until I intimated to Mr. Hinchen that both applications might have to be dismissed for insufficiency of evidence. I granted leave for him to call one of the deponents, Mr. Pau Wah Lung, to, give oral evidence in support of the application. I did so, despite Mr. Sceats’ objection, for two reasons. Mr. Hinchen was apparently unaware that I had earlier refused to make Closure Orders because the affirmations in support merely referred to “illegal structures” without indicating that they were "buildings" within the meaning of section 2(1) of Cap. 123. My suggestions that the Authority should seek legal advice appear to have been ignored. Secondly, if I have correctly understood, Mr. Sceats' objection, calling further evidence on this issue would make no difference. The applications for Closure Orders would still have to be refused because the requisite notices had not been given.

3. On the basis of Mr. Pau's evidence I make the following findings. On the roof top above the 10th and 9th floors of Pak On Building there are structures made of bricks, timber and metal sheet-roofing. Some 30 families live in these structures. Mr. Pau was unable to say whether these structures were merely resting on the roof by their own weight, or whether they were permanently fixed to the roof or any parapet wall or other part of Pak On Building. But the structures had plumbing, electrical, and drainage facilities, which were probably connected to those provided for the main building. Under cross-examination, Mr. Pau told me that notices in accordance with section 27(2) of Cap.123 had been posted in four conspicuous places, namely, two at each end of a corridor between the structures on the roof top; one on the groundfloor of block A near the main entrance to Pak On Building in Austin Road; and one in the lift lobby near the entrance to the roof from the 10th floor of Block A. The situation is not exactly clear. But it seems that Block A9, with it's main entrance on Austin Road, consists of 10 floors; whereas Block B, with en entrance on Tak Shing Street, consists of 9 floors. Although each block has two lifts, from the top of which access to the roof can be gained, those in Block A are normally used for gaining access to the roof of Pak On Building. Evidence of the means of access to the two blocks was given by Madam Yeung Pui-yee, the owner of flats A1 and A2 on the 10th floor of Pak On Building.

4. Before I deal with the principal questions, there is one other procedural matter or question of law on which I must indicate my reasons for ruling as I did. Mr. Sceats sought to cross-examine Mr. Pau on an alleged recent change of policy by the Authority, which seemingly had the effect of eliminating one of the options given by the original demolition order. In 1985 Madam Yeung Pui Yee was given the options to "demolish or alter"; whereas in 1987 the change of policy gave her no choice, but obliged her to demolish. Whilst acknowledging that this change of policy could have been the subject-matter of a further appeal to the appeal tribunal, established by section 43 of Cap. 123, Mr. Sceats contended that it was open to me to enquire into the correctness of this change of policy, and its effect on the validity of the demolition order, because whatever restrictions upon judicial discretion are imposed by the provisions of section 27, the District Court still had an unfettered discretion and judicial function to determine whether the Authority "is empowered to carry out" the works which it considers necessary.

5. I would be extremely, reluctant to hold that the usual Powers and jurisdiction of any court to receive evidence on disputed matters, end to come to decisions on questions of fact, mixed fact and law, or pure questions of law, has been taken away or severely curtailed by the legislature. But, regretfully, I feel that I must concede that such is, in large part, the effect of section 27 of cap. 123. The Authority's opinion that any building should be closed cannot, in my view, be questioned by the District Court. At the most, I think that the mandatory duty to make a Closure Order might not arise if the District Court were satisfied that the Authority did not honestly or genuinely hold that opinion. Although the words: "which he is empowered to carry out … under this Part” in section 27(1)(b)(ii) import a somewhat more objective question, and impose no obvious limitation on the Court's jurisdiction, I consider that the only answer to that question is provided by the legislature in the form of the enact2ent of section 24(3). The authority is empowered to carry out the relevant work if the demolition order has not been complied with. On the basis of Mr. Pau's evidence and the photographs placed before me, the order made in January 1985 hes clearly not been complied with.

6. Mr. Sceats wished to cross-examine Mr. Pau with a view to establishing that the Authority itself had prevented the owner from complying with the demolition order. Even if that be the case, it seems to me that the District Court does not have jurisdiction to enquire into the matter or to set aside the demolition order. Complaints that the Authority has acted "illegally" or “irrationally” can only be considered by the appeals tribunal in accordance with Part VI of the Ordinance, or form the basis of an application for judicial review under Order 53 of the Rules of the Supreme Court. It is not open to me to question the validity of the demolition order or to go behind it for any reason. For these reasons, I ruled that the propose line of cross-examination was irrelevant.

7. The next question is whether, in the light of all the evidence before me, the illegal structures are "buildings" within the meaning of the Buildings Ordinance. According to Section 2(1) of the Ordinance

“building includes the whole, or any part, of any domestic or public building, arch, bridge, cavern adapted or constructed to be used for the storage of oil and petroleum products, chimney, cookhouse, cowshed, dock, factory, garage, hanger, hoarding, latrine, matshed, office, oil storage installation, out-house, pier, shelter, shop, stable, stairs wall, warehouse, wharf, workshop or tower, pylon or other similar structure supporting an aerial ropeway and such other structures as the Building Authority may by notice in the Gazette declare to be a building.”

It seems to me that the expression "illegal structure" is not obviously within the statutory definition. Unless it is proved that it supports an aerial ropeway, or has been declared to be a building by notice in the Gazette, or can be fairly brought within the structures specifically mentioned in the sub-section, some of which might not be regarded as buildings in the ordinary sense of that word (e.g. caverns for the storage of oil; latrines), I am of the view that the structure cannot be the subject-matter of a Closure Order. In part, Mr. Hinchen seeks to meet these objections by contending that section 2(1) of Cap. 123 is not an exclusive definition, and permits resort to the dictionary. He referred me to the Shorter Oxford Dictionary's fourth meaning for "structure", namely:

"That which is built or constructed; s building or edifice of any kind, esp. one of considerable size and imposing appearance 1615."

He appeared to rely on the second part of this "definition", - "a building or edifice of any kind" - to support his argument that "illegal structures” came within section 2(1) of Cap. 123 because they were "buildings".

8. I must confess that I distrust resort to dictionaries when called upon to ascertain the meaning of words used in a piece of legislation. My function as a judge is to ascertain and give effect to the intention of the legislature, having regard to the words it has enacted to express its will and intention. If it chooses to declare that “black” means or means "white", or to enact some similar contradiction, a court must obey the legislative command, unless it can properly conclude that the absurd result was never intended, and only results from some obvious slip or imprecise use of language.

9. In the present case, I do not regard Mr. Hinchen's reference to the dictionary as helpful. With respect, being referred to various meanings of "structure" does not really help me to determine what is included within the expression “building”, whether one is thinking in general terms, or in terms of the enactment found in Section 2(1) of Cap. 123. Furthermore, it seems to me that it is basically wrong to have resort to dictionaries when the legislature has enacted its own "dictionary': in the form of a provision in the interpretative or definitive parts of its enactment. The very fact that the legislature has given the Authority power to enlarge the categories of structures which constitute “buildings” for the purposes of the Ordinance, by notices in the Gazette, is a clear indication that a mere structure is not obviously a building for the purposes of the ordinance.

10. It is, perhaps, pertinent to observe that in MP512/87 the words “building known as” have been deleted from the form of the ex-parte application and from the form of the affirmation of Mr. Chan Kan Ming. The affirmation of Mr. Pau Wah Lung merely refers to the vaguer expression of "the premises the subject of these proceedings." In MP275/87, the words “building known as” were deleted from an affirmation of Mr. Pau Wah Lung end from the form of Closure Order submitted to the Court. These documents emanating from the Authority, suggest some degree of official vacillation on the question whether “illegal structures” are "buildings" for the purposes of Cap. 123. They also suggest that the so-called evidence usually put before the District Court in support of Closure Orders is, or may be, highly suspect and of doubtful reliability. In the present case, I am confident that a Closure Order should be made, despite the various procedural and substantive objections which have been brought to light, because I am satisfied that the persons who are likely to be affected by a Closure Order have had more than ample opportunities to be heard in opposition to the Authority's application, and I can see no prejudice to them from the words used in the formal application.

11. In the light of the additional evidence, Mr. Hinchen invited me to find that the structures were “buildings” separate from the Pak On Building itself. The fact that some 30 families live in the structures indicates that they are being used for habitation. But, I do not consider that they constitute domestic buildings within the statutory definition for the reasons I have already given for rejecting the dictionary definition. If structures are treated as buildings, the reference to the power to declare certain structures as buildings would be superfluous. Yet, a court must endeavour to give meaning to every word used by the legislature.

12. Although Mr. Pau was unable to say whether or not these structures are attached to the roof of Pak On Building, I think that it is more probable that they are permanently affixed by cement or secured in some other way. I do not think that they are resting on the roof by their own weight. Their component parts are almost certainly connected in some way. The photographs appear to indicate that individual structures are also connected to each other. Even so, I doubt whether they would be secure against typhoons, unless they are connected to the Pak On Building in some permanent fashion. When one takes account of the plumbing and other facilities, and the probability that these are connected to those used by the other occupants of the flats in Pak On Building, the structures are not, on my view, to be treated as separate units or dwellings but form part of Pak On Building, which clearly is a domestic building within section 2(1) of Cap. 123.

13. The next question is whether I am satisfied that notice has been given in accordance with section 27(2) of Cap. 123. The use of the word "satisfied" does not mean that I have to be satisfied beyond reasonable doubt; but merely according to the standard of proof in civil matters. Section 27(2)(a) requires that notice of intention to apply for a Closure Order must be given by posting a copy;

“…. upon a conspicuous part of the building to be affected, and upon being so posted such notice shall be deemed to be notice to all persons of such intention.”

Having regard to the fact that Pak On Building has two main entrances from different streets and two sets of lifts giving access to the roof, it is probable, as Mr. Sceats submitted, that persons living in the building and, more particularly, in the structures on the roof, would come and go without ever seeing the notices. But the ordinance does not require the person applying for the order to show th8t he has taken reasonable steps to bring the notice to the attention of the occupiers of the building or part to be affected. Provided the notice is posted upon R conspicuous part of the building, it becomes notice to all persons, including persons who do not live in or visit the building. The statutory provision deals only with the mode of giving notice, and the legal effect thereof. It is not concerned to lay down what amounts to an effective notice for other purposes.

14. I am satisfied that the four notices comply with secti8n 27(2)(a). Indeed, having regard to my finding that the structures form part of Pak On Building, any one of these four notices would be sufficient to comply with this provision. If, contrary to the view I have reached, the structures were separate buildings, the notices on the ground floor and the lift lobby would not comply with Section 27(2)(2). Furthermore, more detailed evidence of the number and nature of the structures might be required before the court could be satisfied that the two notices posted in the corridor were posted upon a conspicuous part of these structures. Indeed it might be necessary to show that more than two notices had been posted in view of the number of families living in these structures.

15. For the above reasons I made the Closure Order, in terms of the application (MP512/87), and dismissed the application made earlier in the year (i.e. MP275/87).