CHUI MARJORIE CHE YING AND ANOTHER v. APPEAL TRIBUNAL (BUILDINGS) AND ANOTHER

CACV 291/2022, [2025] HKCA 606

On Appeal From [2024] HKCA 873

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 291 OF 2022

(ON APPEAL FROM HCAL NO 1655 OF 2021)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

A.  INTRODUCTION

1.  By a Notice of Motion filed on 13 February 2025, the 1^st and 2^nd applicants (collectively “the applicants”) seek leave to appeal out of time to the Court of Final Appeal (“the CFA”) against the judgment of this court dated 16 September 2024 ([2024] 4 HKLRD 952) (“the CA Judgment”).

2.  By the CA Judgment, we allowed the appeal against the judgment of Coleman J (“the Judge”) dated 30 June 2022, by which the Judge allowed the applicants’ judicial review in part ([2022] 4 HKLRD 5) (“the CFI Judgment”).

3.  The facts and issues in the appeal, as well as this court’s reasons for allowing it, are set out in the CA Judgment[1]. We will not repeat them here.  Essentially, contrary to the Judge’s ruling, we held that on a proper construction, the words (“the Words”) “owner of such building” in section 28(3) of the BO should mean the owner of the part or parts of the building which the identified defective drain or sewer serves exclusively.

4.  After reviewing the papers before us, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

5.  In this judgment, unless otherwise stated, we would adopt the abbreviations used in the CA Judgment.

B.  THE APPLICATION FOR LEAVE TO APPEAL TO THE CFA

6.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the HKCFAO”), this court may grant leave to appeal to the CFA if the question involved in the intended appeal is one of great general or public importance, or otherwise, that ought to be submitted to the CFA for decision.

7.  In the Notice of Motion, the applicants ask that leave to appeal out of time be granted on the limb of “great general or public importance” on the following question (“the Question”):

“Under section 28(3) of the Buildings Ordinance (Cap. 123) and where the Building Authority is of the opinion that a drain/sewer of a building is defective and exercises its power thereof to serve an order on ‘the owner of such building’, does the phrase of ‘the owner of such building’ refer only and exclusively to (a) an individual owner of a particular unit or flat on a particular floor with corresponding undivided shares in the building under the Deed of Mutual Covenant in whose unit the drain/sewer is located or (b) an individual owner whose unit the drain/sewer exclusively serves or (c) all the co-owners of the building or (d) the owners’ incorporation of the building?”

8.  The application is opposed by the BA.  In essence, Mr Ernest Ng for the BA has advanced three grounds in opposition, namely: (a) that there was substantial delay without reasonable excuse in taking out the present application; (b) as the subject Pipe is already repaired, the underlying subject matter of the judicial review is spent and the Question is therefore academic; and (c) that the intended appeal has no realistic prospect of success.

9.  In our view, leave to appeal should not be granted for the following reasons.

B1  Out of time application – applicable principle

10.  Pursuant to section 24(2) of the HKCFAO, an appellant has 28 days from the date of the CA Judgment to seek leave to appeal to the CFA, and the appellant shall give the opposite party 7 days’ notice of his intended application and such notice may be given at any time during the period of 28 days.  Under section 24(5) of the HKCFAO, there is a discretion for the court to extend time to apply for leave to appeal.

11.  The principles for granting extension of time for leave to appeal to the CFA are well established.  The court would extend time only if good and sufficient grounds are shown by the applicant.  In deciding whether there are good and sufficient grounds, the court is entitled to take into account: (a) the length of the delay; (b) the reasons for the delay; (c) the chances of the appeal succeeding if an extension of time is granted; and (d) the degree of prejudice to the other party if the application is granted.  See Suen Hung Shan v Commissioner of Inland Revenue [2023] HKCA 690.

B2.  Length of and reasons for delay

12.  In the present case, the deadline for the applicants to take out an application for leave to appeal to the CFA fell on 14 October 2024.  The present application is thus out of time by around 4 months, a delay which is substantial.

13.  The 1^st applicant filed an affirmation on 13 February 2025 to explain the delay.  In essence, she deposed that since June 2023, her husband (ie, the 2^nd applicant) had been taken ill and that his health had deteriorated through June 2023 to September 2024.  During this period, the 2^nd applicant was hospitalised for Aortic Stenosis and Type 2 Respiratory Failure between 7 November 2023 and 8 December 2023 and for Congestive Heart Failure and Aortic Stenosis between 23 and 30 April 2024.  Since his discharge from hospital on 30 April 2024, the 1^st applicant has devoted her full attention and time to taking care of the 2^nd applicant, taking him to doctors and seeing to his needs.

14.  The 1^st applicant then asserted that when she received the CA Judgment via post in September 2024, she “did not immediately turn [her] attention to it as [she] had to focus on caring for [her] husband”[2].  It was only in around mid-December 2024 when the 2^nd applicant’s medical condition stabilised that she “had the time, energy and mind to turn [her] attention to the [CA Judgment]”[3].

15.  Having read the CA Judgment, the 1^st applicant then decided to obtain written opinion from Senior Counsel and instructed solicitors to act for her on 16 December 2024.  She received Senior Counsel’s written opinion about a month later on 13 January 2025.  On 3 February 2025, the applicants through her solicitors filed the Notice of Intended Application for Leave to Appeal out of time.  On 13 February 2025, the applicants filed the Notice of Motion out of time.

16.  Whilst this court is sympathetic to the medical condition of the 2^nd applicant, for the following reasons we do not find the matters relied on by the 1^st applicant to be good and sufficient explanations for the significant delay:

(1)  Upon receiving the CA Judgment in September 2024, the applicants are presumed to know that the deadline for applying for leave to appeal would expire on 14 October 2024, and it is also not her evidence that she was not aware of the deadline[4].

(2)  Despite the fact that the 1^st applicant had to focus on attending the 2^nd applicant at home, this by itself cannot be a good reason as to why she did not find time to read and consider the CA Judgment properly (which would take no more than at most a few hours to do), especially when she should have promptly realised upon receiving the CA Judgment that she was the losing party.  It is therefore purely her personal choice not to do so and to let the time pass.

(3)  In our view, even though the 1^st applicant had to take care of the 2^nd applicant during this period of time, it would be reasonable to expect that she should be able to study the CA Judgment and form a view whether to engage legal advisers to consider the merits of an appeal within 1 ‑ 2 weeks after receiving it. In the premises, when she only decided to engage legal advisers in mid-December 2024 to advise them, there was an inexcusable delay of at least 6  weeks (out of the 2 months’ delay).

(4)  In any event, by the time she decided to engage solicitors and senior counsel to consider the prospect of an appeal, it must have been clear to her and her legal representatives that as a fact, the applicants were already 2 months out of time.  In the circumstances, the applicants and their legal advisers must, and were expected to, act expeditiously to consider whether to make an application for leave to appeal out of time.

(5)  Notwithstanding this:

(a)  It had taken almost 4 weeks for legal advice to be provided.

(b)  After receiving Senior Counsel’s advice that there “is at least a reasonable prospect” of success of an intended appeal on 13 January 2025, the applicants and their legal advisers took almost another 3 weeks to take out the Notice of Intended Application for Leave to Appeal and then another 10 days to file a Notice of Motion seeking leave to appeal out of time on 13 February 2025.

(c)  In other words, it had taken another 8 weeks for the applicants to take out the Notice of Motion after engaging legal advisers.

(6)  Given that the applicants were already 2 months out of time when they engaged the legal advisers, in our view, it would be reasonable to expect (a) legal advice on the merits of an intended appeal to be rendered within 2 weeks (taking into account the nature of the issues involved), (b) the applicants to take out a Notice of Intended Application for Leave to Appeal within 1 or 2 days thereafter, and upon the expiry of the 7-day notice, the Notice of Motion immediately.

(7)  In the premises, there is an unreasonable delay of yet another 3 weeks after the initial unreasonable delay of 6 weeks.

17.  When all the above are considered as a whole, there is a significant inexcusable delay of 8 ‑ 9 weeks by the applicants in taking out the Notice of Motion.

B3.    Merits of the intended appeal

18.  Given the lengthy inexcusable delay, the applicants have to demonstrate that their intended application for leave to appeal has a “real prospect of success” on the merits before the court will consider whether or not to extend time: see Fu Man Kit v Superintendent of Tai Lam Correctional Institution [2022] 5 HKLRD 699 at [25]; and Wing Hang Bank Limited v Crystal Jet International Limited & Ors (unreported, CACV 255/2002, 9 March 2006) at [7].

19.  In this respect, the principal submissions made by Mr Chan for the applicants in support of the merits of the intended appeal are premised on the arguments that (a) the meaning of the Words should be construed together with the other provisions of the BO and this court is therefore wrong (as this is contrary to established principles of construction) in holding at [45] of the CA Judgment that “it is not fruitful” to consider “the other schemes under the BO” and one should not ascribe too much weight to “other provision/version of the BO” and the “legislative history”, and (b) when what counsel says to be the relevant other provisions or amendment history are to be taken into account (as they ought to be), the Words should be properly construed to mean all the owners of a building[5].

20.  We have explained at [45] of the CA Judgment as to why we did not find it helpful (as the Judge did) in paying much weight in the construction exercise to the other versions and schemes of the BO and the legislative history.  We have also explained in the CA Judgment, at some length, why on a proper construction, by looking at the plain meaning of the words, the purpose of the provision, and the anomalous result of a contrary construction, the Words should mean “the owner of the part or parts of the building” which the identified defective drain or sewer serves exclusively[6]. We do not think we have erred despite Mr Chan’s contentions.  But for the present purpose, we are prepared to say that the intended grounds of appeal are at best arguable though not having a real prospect of success.

21.  In the premises, given the significant inexcusable delay, and that the intended appeal does not have a real prospect of success, we should not grant extension of time to the applicants to appeal to the CFA.

22.  However, Mr Chan for the applicants contends that as the Question is one of general or public importance, the court should still consider granting the applicants leave to appeal out of time.

23.  We are not persuaded.

24.  The Decision (to serve the Repair Order on the applicants) which was challenged in the judicial review was made by the BA pursuant to section 28(3) of the BO by reason of the defective Pipe.  It is now common ground that the Pipe has already been repaired.  In the premises the intended appeal is wholly academic as the lis and the live issue of the present case are no longer extant.[7]

25.  In this respect, it is well established that generally, the CFA does not entertain cases that are academic between the immediate parties and exceptions are rare.  Even in the field of public law, the fact that an appeal would be academic as between the immediate parties is a strong factor against granting leave to appeal, even though it is not an absolute bar.  In such a case, it is only where there is a sufficiently great public interest to be served by having a question or questions of public law decided by the CFA that the grant of leave to bring such an appeal may be appropriate: see Mark Taylor Simpson QC v Bar Council of the Hong Kong Bar Association & Ors (2021) 24 HKCFAR 187 at [10]; Yeung Chun Pong v Secretary for Justice (unreported, FAMC 101/2005, 2 March 2006) at [3]; Secretary for Security v Sakthevel Prabakar (2003) 6 HKCFAR 397 at [4].

26.  Relying on R v Home Secretary, Ex p Salem [1999] 1 AC 450 at 457A-B per Lord Slynn, Mr Chan however submits that when a discrete point of statutory construction arises that is of general application and does not require detailed consideration of particular facts, this amounts to good reason for the court to depart from the general rule and exercise its discretion to grant leave.  He further submits that the CFA’s interpretation will be binding authority on lower courts and the intended appeal will serve a useful purpose in the local jurisprudence.

27.  Mr Chan’s above submission on the proposition deriving from Ex p Salem is inaccurate and misleading. The above proposition said to be supported by Ex p Salem must be examined in light of Lord Slynn’s observations in Ex p Salem at p457A-D as a whole where His Lordship said as follows:

“The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.

I do not consider that this is such a case. In the first place, although a question of statutory construction does arise, the facts are by no means straightforward and in other cases the problem of when a determination is made may depend on the precise factual context of each case. In this very case, the first issue is expressed to arise ‘On the facts of this case;’ the second issue concerns the question whether the Secretary of State had any discretion to record and rescind his decision and whether the discretion was exercised rationally and fairly in the instant case.

In the second place, Mr. Pannick, on the basis of instructions from both the Home Office and the Department of Health and Social Security, told us that only in a few cases has this question arisen. In Reg. v. Secretary of State for the Home Department, Ex parte Karaoui, The Times, 27 March 1997, the issue was whether there was a record; the determination was quashed because there was no record. In Reg. v. Secretary of State for the Home Department, Ex parte Bawa (unreported), 27 October 1997 the claim was accepted by the Home Office after the trial judge's decision. In two other cases, applications are being made for judicial review, but leave has not yet been given. The unusual facts of the present case do not seem to provide a good basis for the matter to be raised as a general principle, the particular lis having gone.” (emphases added)

28.  Thus, where the lis under an intended appeal is already gone, the mere fact that a discrete point of statutory construction not involving detailed consideration of facts arises does not by itself amount to sufficiently great public interest for the court to grant leave to hear it, unless it is also coupled with the context “where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future”.  In Ex p Salem, the House of Lords did not find the statutory construction question in that case alone amounted to sufficiently great public importance for leave to appeal to be granted because, among others, “only in a few cases has this question arisen”.

29.  Similarly, in the present case, as pointed out by Mr Ng, there is no evidence to show that there is “a large number of similar cases existing or are anticipated so that the issue will most likely need to be resolved in the near future”.  Rather, as Mr Ng rightly submits:

(1)  The Question is not one which has arisen – let alone often arisen – in many cases.  Save for the present ongoing dispute, it “has never been decided by the High Court”.

(2)  Even if it is assumed that section 28(3) repair orders may not be uncommon and that the Question may interest owners in multi-storey buildings generally, it is a further quantum leap to say that the Question is so important that it is worthwhile for the CFA to resolve it here and now despite the academic nature of the intended appeal: (a) given its scarce treatment to date (there is only one case so far), it would be speculative to suggest that a proliferation of cases would be forthcoming; (b) no principles of general utility would surface from a CFA judgment on the Question.  Whether a person is “the owner of such building” for receiving a drainage repair order should turn on the circumstances, eg, the building’s nature and structure, whom the pipe (exclusively) serves and how it runs throughout the building.  It is context‑driven.

(3)  This is underlined by the peculiar facts of the present case: the subject pipe takes discharge from the applicants’ flat but the defective part (ie, the Pipe) is physically located in the bathroom of the lower flat, hence prompting the applicants’ contention that they should not be served with the Repair Order[8] and raising the arguments relating to the meaning of the Words.

(4)  Therefore, even though the Question relates essentially to a question of statutory construction, the public interest in it would be better served if it is left for another occasion.

30.  In the premises, there is also no sufficiently great public interest for the Question to be determined by the CFA in this intended appeal.

C.  CONCLUSION

31.  For all the above reasons, we would not grant leave to the applicants to appeal to the CFA out of time given the significant and inexcusable delay, the lack of a real prospect of success in the intended appeal and because there is no sufficiently great public interest to be served by having the Question determined by the CFA.

32.  We dismiss the Notice of Motion.  We see no reason to depart from the usual rule of costs follow the event.  We thus order on a nisi basis that the applicants do pay the costs of the BA, to be assessed summarily.

33.  We have considered the Statement of Costs filed by the BA’s legal representatives on 13 March 2025 seeking a total sum of HK$88,110.67.  We consider that the costs sought by the BA’s legal representatives are just and reasonable.  We therefore order also on a nisi basis that the costs of the BA be allowed in full, summarily assessed at HK$88,110.67.

34.  Unless any of the parties applies to vary them by Summons, the costs order and assessment nisi shall become absolute 14 days from today.