Building Authority v. Business Rights Ltd.

HEADNOTE

CONSTITUTIONAL LAW - Hong Kong Bill of Rights Ordinance (Cap.383) - Building Ordinance (Cap.123) - closure order - whether s.27 infringes Articles 10, 14 and 22 of Bill of Rights.

IN THE DISTRICT COURT OF HONG KONG

CIVIL JURISDICTION

CASE NO. 940 OF 1993

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JUDGMENT

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1. These proceedings concern a building erected on a plot of land in Shek O village on the island of Hong Kong. In the various documents placed before me it is referred to as "house No.26" and is located on Shek O Lot No. 1489, which now belongs to the Respondent. The building was completed towards the end of 1990; and consists of three storeys covering the entire lot. The building was erected without the approval or consent of the Building Authority; and, accordingly, contravened section 14(1) of the Buildings Ordinance (Cap.123). An application for approval had been submitted by an authorised person on behalf of the then owner of the lot on the 24th August 1989. But it was "disapproved" by the Building Authority by a letter dated the 19th October 1989, because it contravened various provisions of the Building (Planning) Regulations; and did not give sufficient particulars of the proposal to the Building Authority. By a letter dated the 4th December 1989, the authorised person indicated that he had "ceased to act" as such, because the owner had decided not to proceed with the project. Nevertheless, building works were carried out, resulting in the erection of the three- storey building, notwithstanding a warning letter from the Building Authority dated the 7th November 1990.

2. On the 9th January 1991, the Building Authority gave notice to the then owners, inviting them to demolish the unauthorised building; and warning them that failure to do so would result in the making of a demolition order, under the provisions of section 24(1) of the Buildings Ordinance. On the evidence placed before me, it seems that such invitation was declined. As a result, the Building Authority made a demolition order, under section 24(1) of Cap.123, on the 30th January 1991, requiring the Respondent to demolish and remove the building within 21 days. It is not disputed that that order has not been complied with. In that event, the Building Authority is empowered to carry out the works itself and recover the cost thereof from the owner. In the present case the Building Authority ("the Applicant") wishes to do just that; and now seeks a Closure Order under section 27 of Cap.123.

3. On the 21st November 1991 the Applicant issued a notice of intention to apply for a Closure Order on the 5th March 1992. However, the Respondent appealed against that decision. Although the appeal was dismissed, the result was not announced until August 1992. Because of the automatic stay imposed by section 45 of the Buildings Ordinance, no application for a Closure Order was made on the 5th March 1992. On the 8th October 1992 the Applicant issued a fresh notice of its intention to apply for a Closure Order on the 8th January 1993. The Respondent again appealed against that decision. the appeal was eventually dismissed in February 1993. Again no application was made to the District Court by the Applicant on the 8th January 1993. But, in respect of this notice the Applicant notified the Respondent by a letter dated 29th December 1992 that its proposed application would be "withheld" until the appeal was determined. By a letter dated the 16th August 1993 the Applicant notified the Respondent that the hearing of the application for a Closure Order had been refixed for the 23rd September 1993. On that date the matter came before me and was adjourned to allow affirmations to be filed by the Applicant and the Respondent. The application was further adjourned to enable the Respondent to apply to the High Court for certain relief. An application was made to the High Court but was not successful. It is unnecessary to give the details of such application, except to say that it does not preclude me from making a Closure Order.

4. At this stage, it may be helpful to quote the material provisions of section 27 of the Buildings Ordinance. They are as follows:-

"27(1) upon the application of -

(a) the Building Authority, where he is of the opinion that -

......

(ii) any building should be closed in order to enable any works which he is empowered to carry out or cause to be carried out under this Part, to be carried out without danger to the occupiers or to the public; ...

......

the District Court shall on being satisfied that notice has been given in accordance with the provisions of subsection (2) make a Closure Order:

...

2(a)	Not less than 7 days' notice of intention to apply for a Closure Order shall be given by the person making such application by posting a copy of such notice 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:
	Provided that in the case of an emergency such notice shall be given as is practicable.
(b)	The notice shall reproduced in clear and legible form subsections (8), (10) and (11) in both the English and Chinese Languages."

5. The present application is based on the Notice of Intention dated the 8th October 1992, a copy of which is exhibited to the affirmation of Andy Lai Yuk-nin, affirmed on the 21st September 1993.

6. Mr. Pirie did not seek to argue that such Notice had lapsed because no application was made to the District Court on the 8th January 1993, as the notice stated. Nor did he contend that the Applicant's letters of the 29th December 1992 and the 16th August 1993, seeking to "withold" or suspend such notice and to revive it after the appeal, invalidated the notice because of lapse of time, or the fact that such letters did not comply with subsection (2)(b) of section 27. Nor did he complain of the fact that the Chinese version of the notice does not strictly comply with subsection (2) (a), because it contains Arabic and Roman numerals. In my judgment, this departure from using well-known Chinese characters can be condoned by resort to the de miminis principle, since the notice does reproduce in both languages the substance of subsections (8), (10) and (11) of section 27. Furthermore, having regard to the history of these proceedings, the Respondent cannot contend that it has been prejudiced by any of these highly technical or procedural deficiencies. Indeed, on the 8th January 1993, the Respondent effectively tried to nullify the notice by seeking a hearing of its Originating Summons of the 7th January 1993. That attempt was unsuccessful. The basis on which the Respondent sought the dismissal of the notice by those proceedings (M.P. No.20 of 1993) is not apparent from the affirmations before me (see Exhibit ("JRD 13"), but it certainly was not grounded on any of the supposed "deficiencies" I have mentioned. It may be that the Respondent took that step ex abundante cautela, because of difficulties affecting the conduct of the pending appeal. In my view, it was not necessary because of the automatic stay imposed by section 45 of Cap.123, and the absence of any indication that the Building Authority would disregard that stay.

7. The Respondent now seeks to oppose the Applicant's attempt to obtain a Closure Order by resorting to the Hong Kong Bill of Rights Ordinance (Cap.383), which came into force on the 8th June 1991. On behalf of the Respondent, Mr. Pirie has sought to draw on various aspects of "BORO", as it is fashionably and acronymously known. He has conducted a broad survey of the history of these proceedings in order to support his contention that the Building Authority's present application for a Closure Order should be refused, because it offends various Articles of the Hong Kong Bill of Rights. In particular, he contends that the legislative machinery of control found in Part II of the Buildings Ordinance infringes Articles 10, 14 and 22 of the Bill of Rights, and was, accordingly, repealed on the 8th June 1991 by virtue of section 3(2) of Cap.383. I am grateful to Mr. Pirie for this survey since it affords some illustration of how the statutory machinery can operate and may effect the owners or occupiers of buildings. But, with respect, I cannot have regard to some of his submissions or contentions because they are not germane to the task before me. That is to determine whether the relevant statutory provisions do or do not "admit of a construction consistent with" BORO (s.3(2) of Cap.383). My task is basically one of construction of the statutory provisions. I am not required or empowered to determine whether any aspects of the conduct or policy of the Building Authority in this or other cases has been contrary to Articles of the Bill of Rights because they may be thought to be arbitrary or discriminatory. I am solely concerned with the question whether the legislation, on which the Applicant relies, has been repealed by BORO.

8. Mr. Pirie invited me to look at the statutory machinery as a whole; and, in particular to look at sections 24 and 27 of Cap.123 together. That, if I may say so, is the usual approach to construing any statute. But, ultimately, I am only concerned with section 27 of Cap.123, and whether it has been repealed because it does not admit of a construction consistent with BORO. I am not concerned to decide whether section 24(1) has been repealed because it is inconsistent with BORO. Even if it has been so repealed, I do not think that such repeal would invalidate the demolition order of the 30th January 1991. Nothing in BORO indicates that it has retrospective effect (R. v. Lam Wan Kow [1992] 1HKCLR 272 at 277-8). In any event, it would have to be shown that section 24(3) was also repealed on the 8th June 1991, in order to show that the Building Authority is no longer "empowered" to carry out the demolition works. Mr. Pirie did not specifically attack section 24(3) for this purpose. But, it is implicit in his broad submission that the statutory machinery in Part II of the Buildings Ordinance infringes various Articles of the Bill of Rights.

9. I do not propose to summarise the details of the submissions of counsel. That does not mean that I have not taken them into consideration. Nor does it imply that I am not grateful for the considerable assistance they have given me. I propose to begin with the suggestion that the statutory machinery of Part II of Cap.123 infringes Art. 22 of the Bill of Rights. Article 22 is in the following terms:-

Article 22

Equality before and equal protection of law

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. [cf. ICCPR Art.26]

The Respondent contends that this Article is infringed by the statutory machinery because it treats owners of buildings in Hong Kong in a discriminatory fashion. Owners of land in the ceded parts of the territory of Hong Kong are governed by the Buildings Ordinance (Cap. 123) section 42 of which gives the Building Authroity a restricted power to grant exemptions; whereas owners of land in the New Territories can obtain complete or wider exemptions from Cap.123 by virtue of sections 4 and 5 of the Buildings Ordinance (Application to the New Territories) Ordinance (Cap.121), which was enacted in 1987. Mr. Pirie also drew my attention to the clear difference between the mandatory language of section 27 of Cap.123 and the clear discretion conferred on the District Court by section 24B of Cap.123, and the opportunities given by the latter for representations to be made by persons likely to be affected by a priority demolition order. He also sought to derive support for his complaint of infringement of Art 22 of the Bill of Rights from the decision of Miss Kwan in Ming Yuen Villa (TMC 50343 and 3650 of 1992; 12 July 1992, noted in Bill of Rights Bulletin, Vol 2, No.3, September 1993).

That case involved Closure Orders under the Crimes Ordinance (Cap.200). As a result of the cooperation of the staff of the magistracy I was able to procure a facsimile copy of the learned magistrate's complete ruling in that case during the hearing; and it was made available to Mr. Pirie and Mr. Wu. Having read it, I can find nothing to suggest that the learned magistrate found, or even considered, that the different treatment afforded to all persons connected with the premises constituted an infringement of Article 22. The learned magistrate came to the conclusion that a prima facie infringement of Article 10 was justified by the legitimate purpose of the relevant statutory provisions. Her decision, like that of the Court of Appeal in R. v. Man Wai-keung (No.2) [1992] HKCLR 207, was based on the guarantee of equality before the courts and tribunals. Neither case dealt with the equality before and equal protection of the law, guaranteed by Article 22.

I acknowledge the obvious distinctions in the various statutory provisions. In particular, one cannot avoid appreciating the difference between the apparently narrow and mandatory functions imposed on the District Court by section 27 of Cap.123 and the wider and discretionary powers to be found in section 24B of the same ordinance; as well as the discretionary powers found in other ordinances. Equally, one cannot ignore the fact that owners of land in the New Territories may obtain wider exemptions from the requirements of the Buildings Ordinance than owners of land in the other parts of Hong Kong. But, I am not persuaded that these distinctions amount to discrimination of the kind prohibited by Art.22 of the Bill of Rights. In my judgment, they are based on geographical differences; and not upon discrimination based on national or social origin, property, birth or other status. In my judgment this attack on the continuance of sections 24 and 27 of Cap.123 fails.

It is then contended that section 27 has been repealed because it is inconsistent with Article 14 of the Bill of Rights, which provides:-

Article 14

Protection of privacy, family, home, correspondence, honour and reputation

(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

(2) Everyone has the right to the protection of the law against such interference or attacks.

[cf. ICCPR Art.17]

10. Without question, the making of a Closure Order inevitably involves "interference" with a person's home. But, it has to be remembered that the Article only prohibits "arbitrary" or "unlawful" interference. In my respectful view, these important adjectives have been overlooked in the arguments advanced on behalf of the Respondent in the course of the long history of this case. The statutory machinery was first set in motion in October 1989, when certain plans for a building on the Respondent's land were rejected by the Building Authority. That decision or exercise of discretion was never questioned by an appeal to the appeal tribunal, established by section 43 of Cap.123. When it was discovered that unauthorised building works were being carried out despite that rejection, the Building Authority issued a warning letter before it made the demolition order on the 30th January 1991. These exercises of discretion could have been questioned by an appeal to the appeal tribunal; but the Respondent did not attempt to do so until the 27th March 1991, some two months after the demolition order was made, and long after the 3 weeks stipulated in the First Schedule of Cap.123 had elapsed. (See exhibit JRD-7).

11. Since making the demolition order on the 30th January 1991, the Building Authority has refrained from applying for a Closure Order because of various appeals made by the Respondent between 1991 and 1993. In my view, the Respondent has wholly failed to show a prima facie infringement of Article 14. The Building Authority's handling of this case cannot, in my view, reasonably be regarded as "arbitrary" or "unlawful". The Respondent has had numerous opportunities to challenge the original and subsequent decisions of the Building Authority. The Respondent has done so in later years, but has not succeeded in persuading the appeal tribunal to reverse or modify the Building Authority's decisions.

12. In my judgment the only ground which merits serious consideration is the alleged infringement of Article 10 of the Bill of Rights, the material part of which provides:-

"All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law..."

the Respondent contends that section 27 of Cap.123, on its proper construction, is inconsistent with this Article, and therefore repealed. It enables the building Authority to obtain a Closure Order from the District Court, which is not allowed to inquire into the merits or hear representations or receive evidence from the persons who will be adversely affected by the order. The court is given no discretion to grant or refuse the order. It is obliged to make the order if satisfied that the statutory notice has been given. Mr. Pirie contrasted the various provisions of section 24B, which give the District Court a wide discretion to make or refuse to make demolition orders (including Closure Orders), or to vary or discharge such orders.

13. I must confess that I have long wondered about the reason for involving the District Court in this part of the statutory machinery for controlling building works; and felt distinctly uncomfortable by the mandatory language of section 27 and the Building Authority's practice of giving the court the least amount of factual information. The cyclostyled forms of affirmations used in support of applications for Closure Orders are mostly recitals of the statutory language; and probably inadequate in most cases, because they do not prove that the Authority is "empowered to carry out" the works for which, in his opinion, a Closure Order is required. That comment does not apply in this case because of the two comprehensive and helpful affirmations which were eventually filed. But, suggestions that the statutory provision in question makes the District Court no more than a rubber stamp to give a specious authority for executive action by police officers and officers employed by the Building Authority cannot now be dismissed as merely cycnical remarks because of the enactment of Cap.383. This use of the District Court may now be inconsistent with BORO, with the consequence that s.27 of Cap.123 was repealed on the 8th June 1991.

14. Mr. Wu seeks to uphold the statutory provisions and repel the attack based on the Bill of Rights on various grounds. He contends, in particular, that there is no inconsistency with Article 10 of the Bill of Rights because the present application does not involve a determination of "rights and obligations in a suit at law." Mr. Wu's submission in this respect seems to be based on the proposition that the Closure Order which the District Court must make is not a judicial act but an administrative act, which does not attract the attention of Article 10 of the Bill of Rights. I do not accept that submission for the reasons given by my brother Judge Cheung when dealing with a similar argument on section 77 of the Inland Revenue Ordinance in C.I.R. v. Lee Lai Ping (CJA 1541 of 1992 and M.P. 896 of 1990; 25th March 1993).

15. Both Mr. Wu and Mr. Pirie sought to derive some support for their respective arguments from my previous unreported decision in Building Authority v. Owners of illegal Structures at Pak On Building (MP 275 and 512 of 1987; 30th October 1987). Neither counsel has suggested that my construction of Section 27 in that case was incorrect. To the extent that the District Court is precluded from questioning the demolition order, Mr. Pirie contended that it now infringes Article 10 of the Bill of Rights because it does not afford the Respondent a fair hearing by an impartial tribunal. The District Court cannot inquire-into the merits of the Respondent's grievance. Mr. Wu's reply is to the effect that the District Court can consider whether the Building Authority's opinion is genuine. The fact that section 27 does not allow the District Court to consider the validity of the demolition order is not an infringement of Article 10 of the Bill of Rights because the ordinance does provide appellate procedures for challenging the making of a demolition order (under section 24(1) Of Cap.123) and any other exercise of discretion by the Building Authority, unlike the position in Skarby v. Sweden (1990) 13 EHRR 90, where there was no right to appeal against the Building Committee's exercise of the discretion to grant exemption from the building plan.

16. In my view, if section 27 of Cap.123 is read alone it clearly does not give the protection which a party to a suit at law is entitled to receive by virtue of Article 10 of the Bill of Rights. But, it is not correct to construe the provision of any statute in isolation. It must be construed in the context of the statute as a whole. Section 27 of Cap.123 is the final step or stage in a series of steps or stages in the legislative machinery for dealing with contravention's of the Buildings Ordinance. Any person prejudiced by any decision of the Building Authority can appeal against that decision, as the Respondent has done in this case. It is true that the District Court only becomes involved at the final stage (except for cases covered by section 24B). But, I am not persuaded that the statutory provisions (Part VI of Cap.123) establishing the appeal tribunal fail to meet the minimal guarantees of Article 10 of the Bill of Rights. I reject Mr. Pirie's contention that the appeal machinery is useless or inadequate because the appeal tribunal has no greater powers than the Building Authority, because of the provision in section 42(5) of Cap.123. Legislation like BORO must be given a liberal and purposive interpretation, but should be approached with realism and good sense. It is primarily aimed at ensuring that lawful rights and legitimate expectations are not defeated by arbitrary or unnecessary conduct by public authorities; and that persons accused of contravening the rights of others, whether private or public, receive a certain minimal protection in the form of a fair trial of the disputed issues. In my view, it is not intended, and should not be construed, so as to condone unlawful activity by anyone, or to enlarge the rights of persons involved in illegal activities.

17. In the present case, I am satisfied that the relevant statutory provisions do admit of a construction which is consistent with BORO, because they provide adequate machinery for appealing against every decision of the Building Authority prior to the final act of enforcement. The very narrow scope of the District Court's powers under section 27 of Cap.123 is compensated by the ample opportunities for appealing against decisions of the Building Authority to the appeal tribunal before the Building Authority seeks a Closure Order. In the present case, the Respondent's complaint that the District Court cannot consider the validity of the demolition order stems from its own failure to take advantage of the statutory machinery at the material time. It does not result from any inconsistency with Article 10 of the Bill of Rights.

18. In the present case, I am satisfied that the Building Authority has established all the grounds for obtaining a Closure Order, and I propose to make such order. I would, however, suggest that the Building Authority should re-consider its usual practice when seeking such orders. In the present case, the Respondent had good reason to complain that it was unable to file affirmations in opposition to the application for a Closure Order, because it was not filed with the District Court until the date mentioned in the notice of intention, i.e. 23rd September 1993. Unless the situation is one of genuine emergency, the Building Authority's application for a Closure Order and the supporting affirmations should be filed in the District Court not less than 7 days before the District Court is invited to make the order. The present practice of waiting until the date specified in the notice required by section 27(2) of Cap.123 before making the application to the District Court is, in my view, wrong. Furthermore, the usual affirmations in support of the application should be enlarged by giving more details of the factual history of the case. In particular, they should show how and when the Building Authority became empowered to carry out the works in question; or why the building is, or liable to become, dangerous.