CHINLUCK PROPERTIES LTD v. APPEAL TRIBUNAL (BUILDINGS)

CACV 242/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 242 OF 2012

(ON APPEAL FROM HCAL NO. 124 OF 2012)

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REASONS FOR JUDGMENT

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Hon Lam VP:

1. I respectfully agree with the judgment of Fok JA which I have read in draft. I only wish to make some observations about the translation of the withdrawal letter. I must make it clear at the outset that these observations are not directed against Mr Aiken who plainly cannot be held responsible for any inaccuracy in the translation provided to him. We were told at the hearing that the uncertified translation was provided by solicitors for the applicant. Mr Aiken was assisted by junior counsel who, I believe, is conversant with Chinese.

2. In a case where the sustainability of a legal argument (in the present case, the legitimate expectation argument) depends very much on the wordings in a document which has to be translated, those responsible for the preparation of the materials to be placed before the court must ensure that the translation is accurate.  Such duty is placed on solicitors as well as counsel (so long as they are conversant with the Chinese language) even if the translation was prepared by someone else.  For my part, as a bilingual judge, I will usually refer to the original Chinese documents.  However, there are cases where the court must depend on translated versions provided by parties.

3. As illustrated in the present case, the inaccurate translation has led counsel to take a false point before us.  I am not suggesting that this was done deliberately and I have already observed that Mr Aiken cannot be faulted in this respect.  However, a failure to ensure the accuracy of the translation may unnecessarily increase the length and costs of legal proceedings.  The court should be able to depend on the legal profession in providing accurate translation in key documents used in legal proceedings and this sort of mistake should not have happened.

Hon Kwan JA:

4. I agree with the Reasons for Judgment of Fok JA.

Hon Fok JA:

Introduction

5. By her judgment dated 15 October 2012, Au Yeung J dismissed the application by Chinluck Properties Limited (the applicant) for leave to apply for judicial review of a determination of the Appeal Tribunal Buildings (BAT).  The BAT’s determination had resulted in the summary dismissal of two appeals by the applicant against building orders issued by the Building Authority (BA) in respect of certain unauthorised building works (UBWs).

6. The crux of the issue before the Judge below and in this court was whether the application for judicial review could be shown to be reasonably arguable.

7. At the conclusion of the hearing, we concluded that the applicant had not satisfied the threshold of reasonable arguability and so we dismissed the appeal and indicated that the reasons for our decision would be handed down in due course.  These are those reasons.

The background facts

8. The applicant is the owner of the roof of Hoi To Court, 275 Gloucester Road, Hong Kong.

9. On 8 May 1996, the BA issued an order to the applicant under s. 24(1) of the Buildings Ordinance (Cap. 123) in respect of certain metal frameworks supporting advertising signs erected on the roof of Hoi To Court (the 1996 Order).

10. In the light of certain representations made on behalf of the applicant, the 1996 Order was subsequently withdrawn on 27 November 1998.  By a letter of that date, the BA wrote to the applicant’s architect stating:

“Order No.C/AT/0565/96/HK

Advertising Signboards Erected at Main Roof

of Nos.271-275 Gloucester Road, Hong Kong

I refer to your letters dated 19 November 1998 and 25 September 1998.

I have no objection in principle to your justifications provided. As such, the above order is hereby withdrawn.

Attached please find a copy of the withdrawal letter.”

11. The formal withdrawal letter dated 27 November 1998 attached stated[1]:

“I refer to my Order No.C/AT/0565/96/HK which was served on you on 8 May 1996 in connection with unauthorized building works which had been carried out at the above premises. I note that modifications have been carried out to the said building works, and having taken into consideration the circumstances, I am prepared to withhold further enforcement of my order for the time being. However, I may consider issuing a new order for the complete removal of all unauthorized building works in future should changes in circumstances so require.

Order No.C/AT/0565/96/HK is hereby withdrawn.”

12. Following a new policy introduced by the Government in 2001 for the removal of UBWs, Hoi To Court was one of the target buildings designated by the Buildings Department (BD) under the Blitz UBW Clearance Operation 2004.  The BD wrote to the owners and occupants of Hoi To Court on 17 September 2004 informing them that it had appointed DTZ Debenham Tie Leung Project Services Limited (DTZ) as contract consultant under an agreement (No. BA/U07/2004) “in providing services for the Blitz Unauthorized Building Works (UBW) Clearance at the captioned building.”  The letter continued:

“The Contract Consultant is appointed solely for investigating the UBW on external walls and dilapidation on external walls and in common areas of your building and handling the administrative work of the related removal/repair orders. …”.

13. Also on 17 September 2004, the Project Director of DTZ wrote to the owners and occupants of Hoi To Court, cross-referring to the BD’s letter of the same date and stating (amongst other things):

“There have been cases of loss of life and limb in recent years arising from dangerous unauthorized building works (UBW) on the external walls of buildings. A number of buildings in the territory have been inspected by staff of Buildings Department (BD) for the purpose of identifying the UBW which threaten public safety. The building at the above location is one of those which the BD have inspected and targeted for clearance of UBW. The BD has appointed DTZ Debenham Tie Leung Project Services Limited to carry out the investigation.

 I hereby give you notice that when particulars of ownership are available, BD will serve removal orders under the Buildings Ordinance against the UBW on the external walls.  In addition, if any parts of the external walls and common areas are found to be loose, cracked, or defective, repair works will also be necessary.  I strongly advise that, as a responsible owner of property, you make arrangements as early as possible to remove the UBW without waiting for orders from the BD.  …”

14. DTZ’s 17 September 2004 letter contained a header which stated:

“Buildings Department’s Contract Consultant (Agreement No.BA/U07/2004)

DTZ Debenham Tie Leung Project Services Limited is appointed by the Buildings Department to investigate the unauthorized building works on external walls and dilapidation of external walls and in common areas of buildings and to handle the administrative work of the related statutory orders.”

15. On 20 April 2005, the BA issued an order to the applicant under s. 24(1) of the Buildings Ordinance (Cap. 123) in respect of “fluorescent tubes sign(s) with metal frame(s) support bearing the main inscription of ‘創律石材’ erected on the approved canopy at the front”.  The applicant was required by the order to demolish these building works and reinstate in accordance with the approved building plans.  This was order No. UBZ/U07-13/0001/04 (the 2005 Order).

16. The 2005 Order was accompanied by a letter of the same date from DTZ to the applicant, containing the same header as set out above, cross-referring to the order itself and advising the applicant as to how to go about carrying out the works specified in the order and on various consequential matters.

17. On 28 April 2005, by notice of appeal under s. 47 of the Buildings Ordinance, the applicant appealed against the 2005 Order.

18. The same sequence of events in respect of the 2005 Order was repeated the following year.

19. On 10 October 2006, the BA issued an order to the applicant under s. 24(1) of the Buildings Ordinance (Cap. 123) in respect of “one structure erected on and over the roof”.  The applicant was required by the order to demolish the building works and reinstate in accordance with the approved building plans. This was order No. UBZ/U07-13/0074/04 (the 2006 Order).

20. The 2006 Order was accompanied by a letter of the same date from DTZ to the applicant, containing the same header as set out above, cross-referring to the order itself and advising the applicant as to how to go about carrying out the works specified in the order and on various consequential matters.

21. On 8 November 2006, by notice of appeal under s.47 of the Buildings Ordinance, the applicant appealed against the 2006 Order.

The BAT’s Determination

22. Following the filing of a combined statement of particulars by the applicant for both appeals and the BA’s request for a determination of whether good cause was shown for holding a full hearing, the BAT directed a consolidated preliminary hearing to be heard on 30 November 2011.

23. The applicant’s grounds of appeal against the 2005 and 2006 Orders were that (i) there was unlawful delegation of statutory authority by the BD to DTZ so that the Orders were null and void, and (ii) the Orders defeated a legitimate expectation arising from the BA’s withdrawal letter dated 27 November 1998 that the resulting works after the modifications it had made to the UBWs following the 1996 Order were already in compliance with the requirements of the BA and that, unless there had been relevant changes in circumstances, the works would not be considered as contravening works or require to be removed.

24. On 16 August 2012, the BAT determined that no good cause had been shown for holding a full hearing and so dismissed the two appeals.

25. By notice of application for leave to apply for judicial review dated 3 October 2012, the applicant seeks an order of certiorari to quash the BAT’s determination dismissing the appeals and an order of mandamus requiring a differently constituted BAT to fix a date for the full hearing of the appeals.

The Judgment below and grounds of appeal

26. As I have already indicated, the Judge refused to grant the applicant leave to apply for judicial review.  In brief, she concluded, in the face of three grounds advanced before her as to why she should grant leave to apply for judicial review, that:

(1) There was nothing in the Buildings Ordinance precluding service by the BA of the 2005 and 2006 Orders through DTZ rather than by the BA directly;

(2) The applicant’s argument that there was wholesale delegation by the BA to DTZ of its public power so that the BA had not exercised any independent judgment of its own was not substantiated; and

(3) The BA had not made any representation in the 27 November 1998 letter giving rise to the alleged legitimate expectation relied upon.

27. On this appeal, brought pursuant to O.53 r.3(4), the applicant maintained both the unlawful delegation and legitimate expectation grounds.  However, in respect of the unlawful delegation ground, the service point was no longer taken so that the only argument on this ground related to the wholesale delegation point.

28. The relevant question for this court is whether one or other of the grounds relied upon in support of the application for leave to apply for judicial review satisfies the arguability test, i.e. that the claim for relief is reasonably arguable.[2]

The legitimate expectation ground

29. The doctrine of legitimate expectation in public law is now well-established and the relevant principles can be found in Ng Siu Tung & others v The Director of Immigration (2002) 5 HKCFAR 1 at §§93 to 98 and R v London Borough of Newham, ex p Bibi and Al-Nashed [2002] 1 WLR 237 at §§19 et seq.

30. In the Form 86 Notice and before the Judge, it was submitted that the 27 November 1998 letters, by their clear wording or alternatively by implication, constituted a direct and unambiguous representation by the BA to the applicant that the relevant works, done in response to the 1996 Order, were already in compliance with the requirements of the BA and that, unless there were some subsequent changes in the relevant circumstances, the works would not be considered by the BA as contravening works or require to be demolished.

31. I do not, with respect, agree that this representation is conveyed by the 27 November 1998 letters.  The short letter from the BD to the applicant’s architect expressly cross-refers to the withdrawal letter of the same date and one must therefore look to that letter to ascertain what representation was made by the BD to the applicant.  I have set out the translation of that letter above.  On its wording, it is clear to me that:

(1) It refers to the building works which were the subject of the 1996 Order and the fact that the building work the target of that order was unauthorised;

(2) The BA’s preparedness to withhold further enforcement of the order for the time being as a result of the modifications to the building works and in the circumstances was necessarily only a temporary position and might change with the result that further enforcement would then follow; and

(3) In the event a change in circumstances required it, the BA might consider issuing a new order for the complete removal of the UBWs in the future.

32. I do not regard the 27 November 1998 letters, read in context, as suggesting that the UBWs which were the subject of the 1996 Order were already in compliance with the Buildings Ordinance.  On the contrary, the withdrawal letter conveys the clear fact that the work was unauthorised and does not go on to indicate that this has changed.  All that the withdrawal letter said is that, because of the modifications, the BA would withhold further enforcement of the order for the time being.  If the letter was in truth conveying the notion that the works were then in compliance with the Buildings Ordinance, they would no longer be UBWs and no longer liable to be proceeded against by way of order for removal.  Yet that is precisely what the withdrawal letter said might transpire if changes in circumstances should so require.

33. In a written synopsis of the applicant’s submissions served shortly before the hearing of the appeal, Mr Nigel Aiken SC, appearing with Mr Kenneth KH Lee, submitted that the legitimate expectation arising from the withdrawal letter was that “any reissue of a demolition and removal order would be conditional on there being changes to the building work (emphasis added)”.  That alleged representation is plainly different to the pleaded representation and appears to be based on the uncertified translation of the withdrawal letter.  However, since that uncertified translation is not supported by the proforma version relied on by the applicant before the BAT and in its Form 86 Notice, nor by the certified translation provided shortly before the appeal, I do not think the submission is sustainable.

34. A new point advanced by the applicant in its synopsis and addressed by Mr Aiken in his submissions at the hearing was an argument, deriving from an assertion made in the applicant’s architect’s letter to the BA dated 25 September 1998, that the advertising sign on the roof of Hoi To Court was to be treated differently from other UBWs.  The argument advanced by the applicant’s architect was that the erection of the advertisement did not require approval and consent under s. 14 of the Buildings Ordinance.  Thus, the 2005 and 2006 Orders, insofar as they purportedly applied to an advertisement, were ultra vires.

35. There is no substance in this new point because, whatever the merits of the applicant’s architect’s argument that advertisements are not subject to s. 14 of the Buildings Ordinance (and, for my part, although it is unnecessary to decide the argument, I do not think it is correct), it was never part of the applicant’s case before the BAT that the 2005 and 2006 Orders should be set aside because they were ultra vires for that reason.  Hence, the application for leave to apply for judicial review did not and does not raise that question.  This court is dealing solely with the question of whether the Judge was right to conclude that it is not reasonably arguable that the BAT was wrong to reject summarily the arguments made to it as to why the 2005 and 2006 Orders should be set aside.  Those arguments did not include this new point and so that point is beyond the scope of this appeal.

36. The applicant further submitted, relying on Ng Siu Tung at §93, that the adoption of a new policy does not relieve a decision-maker from a duty to take into account a legitimate expectation. Therefore, the argument ran, insofar as the BA sought to rely on the revised enforcement policy promulgated in 2001, the adoption of a new policy did not relieve the BA of a duty to take into account the applicant’s legitimate expectation.

37. Again, with respect, I do not think this argument avails the applicant.  Here, whatever legitimate expectation might be said to arise out of the 27 November 1998 letters, that legitimate expectation is itself, as a matter of plain construction of those letters, defeasible by a change of circumstances.  Since the legitimate expectation only existed in the absence of changed circumstances, once the change of circumstances led to the implementation of a new policy, the legitimate expectation was superceded and ceased to exist.

38. This analysis also provides the answer to the applicant’s submission that the BA had an obligation to express its reasons for not honouring the legitimate expectation so that it could be tested by a court.  In short, the legitimate expectation having ceased to exist, there could be no requirement on the BA to justify not giving effect to the expectation.

39. As to the contention, on behalf of the applicant, that it was incumbent on the BA to explain why the works were found to be non-contravening in 1998 and why such works had become contravening in 2005, this contention proceeds, in my view, on the false premise that the 27 November 1998 letters conveyed a representation that the UBWs the subject of the 1996 Order had become non-contravening in 1998.  As I have already indicated above, there is no such representation contained in the 27 November 1998 letters.

40. Finally, in respect of the legitimate expectation ground, it was contended by the applicant that it was incumbent on the BA to explain what the changes in circumstances were that had caused the BA to refuse to honour the legitimate expectation.  Whilst I can accept that there might be circumstances in which a public authority may be required to explain why a change of stance has been adopted, I do not regard this case as engaging that requirement.  The indication in the withdrawal letter is plain, that the BA was reserving the right to issue a further order for the removal of the UBWs in the future should changes in circumstances so require.  This was a broad reservation of his right to proceed in accordance with the statutory scheme for the control of building works.  In the present case, I consider that the correspondence from the BD and DTZ in 2004 sufficiently stated that BD was pursuing the issue of UBWs in Hoi To Court anew under the Blitz UBW Clearance policy and no further explanation was called for.

41. Further, and in any event, in the BA’s statement in response to the applicant’s appeal against the 2005 Order it was stated that the BD had received a number of complaints relating to the UBW in question and the BD had dispatched its staff to inspect the premises on 11 January 2005 and had found a neon sign of approximately 5 metres in height and its supporting metal frame “in a rusting condition”.  Along with the revised enforcement action policy for the demolition of UBWs implemented generally in Hong Kong by the BD since 1999, and the Blitz UBW Clearance Operation applied to Hoi To Court in 2004, these factors would plainly constitute a change in circumstances justifying the BA in taking further enforcement action notwithstanding the 27 November 1998 letters and notwithstanding also the statement in the BD’s document “Blitz UBW Clearance 2004 – List of actionable UBW”.  The applicant relied on the statement in the latter document suggesting that “advertising signs” fell into a category of non-actionable UBWs.  However, that statement was a qualified statement of exclusion from the enforcement policy since the document also stated that advertising signs would be removed if they were dilapidated and posing a danger, which, it would appear, was the view of the BA here.  Moreover, and in any event, the document also listed UBWs on rooftops, including rooftop structures with projections, as actionable UBWs and the BA contended[3] that this was the category into which the UBW in question fell.

42. In these circumstances, the applicant’s suggestion that the matters requiring explanation by the BA are fact-sensitive so that they could not be resolved without full discovery and the exchange of witness statements is not one which I accept.  I consider that the BAT was able properly to reach the conclusion on the material before it that there was no substance in the applicant’s legitimate expectation argument so that it was not necessary to direct a full hearing of the appeal against the 2005 and 2006 Orders on that issue.  Similarly, the Judge was correct, in my view, to conclude that this ground did not give rise to a reasonably arguable basis for judicially reviewing the BAT’s determination.

The unlawful delegation ground

43. The applicant submitted that there was no evidence that the BA had exercised any discretion or independent judgment in relation to the 2005 and 2006 Orders, rather than simply rubber-stamping a decision already made by DTZ.

44. Thus, it was contended, the BA had unlawfully abdicated responsibility for taking those decisions and had gone beyond merely giving weight to the advice of expert bodies on technical matters, which was permitted, and had treated the decision as conclusively determined by the expert, which was not permitted: see R v Tandridge District Council, ex p Al Fayed (2000) 79 P. & C.R. 227 at p. 232.

45. In my judgment, the applicant’s submission that there was no evidence of exercise of discretion or independent judgment by the BA is pure speculation.  Nor do I accept the submission that relevant correspondence presented the BA’s issuance of the 2005 and 2006 Orders as a foregone conclusion once DTZ’s decision was made.

46. I have set out the relevant letters leading to the issue of the 2005 and 2006 Orders above and I do not read them as suggesting that the DTZ rather than the BA would be the decision-maker for the issue of the relevant orders or that the BA was simply rubber-stamping a decision taken by DTZ.  The headers on the letters from DTZ are a clear indication of DTZ’s awareness, as contract consultant for the BD, of its limited role.  Moreover, I read the correspondence in question as clearly suggesting that the orders, if made, would be the result of a decision by the BA rather than DTZ.  In the two orders themselves, the BA states that it “has been brought to my attention” that the relevant building works have been carried out and his order is expressed to be made in the exercise of powers “vested in me” under s. 24(1) of the Buildings Ordinance.  These indications are clearly consistent with an independent decision on the part of the BA.

47. Furthermore, the DTZ letters dated 20 April 2005 and 10 October 2006 both begin by a reference to an attached letter from the BD and a request that the applicant first read that attached letter.  Although we have not been provided with those attached letters, the statement of particulars filed by the applicant in support of the consolidated appeals sets out part of the text of the BD’s letter attached to DTZ’s 20 April 2005 letter.[4] The BD’s attached letter included the following statements, which plainly support the conclusion that there was no wholesale delegation by the BD to DTZ, namely:

“The Consultant’s role is to provide technical service on behalf of this department in assisting owners to improve the safety condition of their building. Staff of this department will perform all statutory duties.”

“Based on the Consultant’s investigation findings, the BD has decided to issue separate orders requiring the affected owners to remove certain external UBW requiring the affected owners to remove certain external UBW.”

48. The applicant’s complaint that the BA has disclosed nothing from its internal records to support the notion that it had in fact exercised independent investigation or verification or discretion is, therefore, no more than “fishing” for material to support the applicant’s case.  It was not disputed that the BA is entitled to hire consultants to assist in the investigation of UBWs.  The complaint is in relation to the decision-making process to issue an order under s. 24(1) of the Buildings Ordinance.  Since there is nothing of substance to support the applicant’s case that the BA had not done so in respect of the 2005 and 2006 Orders, there is no justification, in my view, for permitting such a fishing expedition to proceed.

49. It is correct that the correspondence discloses the existence of the contract consultant agreement and, quite properly, there was no attempt to suppress that fact.  But the mere existence of the agreement does not, in the circumstances of this case, justify its disclosure since there is no basis for thinking that its terms might support the applicant’s speculative case that DTZ rather than the BA was exercising the necessary independent judgment.  Nor can the applicant make such disclosure relevant or necessary simply by making a bare submission to this effect.  In these circumstances, there is nothing for the maxim omnia praesumuntur contra spoliatorem (that all things are presumed against a wrongdoer), which the applicant prayed in aid, to operate upon.

50. The applicant also contended that the BAT had, in its Determination, evaded the question of whether the BA did in fact make the final decision.  I do not agree.  In the Determination (at §25), the BAT expressly “[did] not find that there was any inappropriate conduct/method done by the [BA] which was deviated from its usual course of practice”.  In context, this was clearly a finding that there was no unlawful delegation of the decision-making function to issue the 2005 and 2006 Orders.

51. Finally, I would reject the applicant’s submission that the unlawful delegation issue is fact-sensitive and should not be determined at the stage of a preliminary hearing.  This is simply an attempt to fish for material on which to build a case and is not the appropriate approach to a judicial review of administration action.  The burden is on the applicant to show a reasonably arguable ground of challenge.  Where it cannot do so, it does not assist to suggest that such a ground might be shown to exist on further investigation.  That is an attempt to resurrect the potential arguability threshold for the grant of leave to apply for judicial review and must be rejected.

Conclusion

52. For these reasons, the appeal was dismissed.

53. Since the notice of appeal was not served on either the BAT (as respondent) or the BA (as interested party) and neither appeared as a party on the appeal, we made no order as to costs.