HKSAR v. JOY EXPRESS LTD

HCMA706/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.706 OF 2004

(ON APPEAL FROM ESS 1817 OF 2004)

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JUDGMENT

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1. Joy Express Limited (the defendant) was summonsed for the offence of being the owner of building works, between 22 July 2003 and 13 November 2003, at external wall of Cheong K. Building (“the Building”), Nos.84-86 Des Voeux Road Central, Hong Kong, did, without reasonable excuse, fail to comply with an order C/TA/10254/01/HK of the Building Authority (“the Authority”) served under section 24(1) of the Buildings Ordinance, Cap. 123 (“the Ordinance”) on 5 December 2001 requiring the carrying out of the works namely, to demolish the unauthorized building works, and to reinstate the affected part(s) of the building in accordance with the plans approved by the Authority.

2. The defendant was convicted and the appeal was dismissed by this court on 15 April 2005.

3. The defendant was dissatisfied with my decision and wish to take the matter further to the Court of Final Appeal on the ground that there were points of law of great and general importance being involved.  In his Notice of Motion, Mr Choy had formulated five points of law which he invited this court to certify.  He had addressed the court particularly on Point 1, saying that it would encompass all the other points, and he sought to rely on the authority of Liew Sai Wah v. Public Prosecutor [1969] 1 AC 295 to support his contention regarding the construction of a penal statute.

4. However, having read the relevant material and heard Mr Choy, I have come to the conclusion that the condition in section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 is not satisfied.  It would not be appropriate to grant the certificate and the application is therefore dismissed.