HKSAR v. TSE YEE PING

Press Summary (English)

Press Summary (Chinese)

FACC No. 2 of 2016

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 2 OF 2016 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 694 OF 2014)

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J U D G M E N T

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Chief Justice Ma:

1. I agree with the judgment of Mr Justice Fok PJ.

Mr Justice Ribeiro PJ:

2. I agree with the judgment of Mr Justice Fok PJ.

Mr Justice Tang PJ:

3. I agree with the judgment of Mr Justice Fok PJ.

Mr Justice Fok PJ:

4. The principal issue in this appeal is whether the appellant’s conviction by a magistrate for failing, without reasonable excuse, to comply with an order to remove a canopy from the top of his house was correctly upheld by the Court of First Instance.  This requires the Court to consider the questions of whether the building of the canopy, and its additional height, are to be taken into account in determining whether the appellant’s house, which is situated in the New Territories, is exempt from the provisions of the Buildings Ordinance,[1] section 14 of which requires prior permission to be given for any building works.[2]

5. These questions turn primarily on the construction of certain provisions of the now repealed Buildings Ordinance (Application to the New Territories) Regulations (Cap.322, 1984 Ed.) (“the 1984 Regulations”) (set out in Section B.1 below), which applied, and continue to apply, to building works carried out prior to 16 October 1987.  Certain building works, as defined in those regulations, were exempted from the general provisions of the Buildings Ordinance.

A.      The facts and proceedings below

A.1     The house and canopy in issue

6. On 14 December 1981, the appellant became the owner of a piece of land in Shatin (Lot No.1780 in D.D. 281) by virtue of New Grant No.11691 (“the New Grant”).  In 1985, he built a three-storey village-type house on the lot and a Certificate of Compliance was issued by the District Lands Officer, Shatin, certifying that all positive covenants of the New Grant had been complied with.  The house measures 700 square feet (35 feet x 20 feet) and is 25 feet in height.

7. In 1986, the appellant constructed a canopy of about 400 square feet on the roof of the house.  This canopy was identified as a “suspected illegal roof-top canopy” in a letter from the District Lands Officer, Shatin, dated 7 October 1987.  By letter dated 29 October 1987, the District Lands Officer, Shatin, required the appellant to show that the canopy had been authorised.  On 6 July 1988, a notice was posted on the premises and, by letter dated 19 July 1988, the District Lands Officer, Shatin, demanded that the canopy be demolished. This was followed by a letter requiring rectification of the breach of the New Grant and threatening re-entry.

8. In 2011, the appellant extended the canopy, which is 2.7m in height, to cover an area of approximately 467 square feet.[3]

A.2     The summons

9. On 29 January 2011, the Buildings Authority received a complaint about the canopy and conducted an inspection.  As a result, on 30 March 2011, the Buildings Authority issued an order under section 24(1) of the Buildings Ordinance demanding the removal of the canopy within 30 days as “unauthorised building works”.[4] A compliance inspection carried out by the Buildings Authority on 4 July 2011 revealed that the canopy was still in place.  This led to further warning letters from the Buildings Authority to the appellant and further compliance inspections.

10. When the canopy was still not removed, a summons was issued against the appellant and he was tried before a magistrate for contravention of section 40(1BA) of the Buildings Ordinance for failing, without reasonable excuse, to comply with the order under section 24. 

A.3     The proceedings below

11. On the appellant’s trial on the summons,[5] the Magistrate found that the works to the canopy in 2011 rendered the canopy a new structure different from the original canopy.[6]  She therefore held that the 1984 Regulations did not apply.[7]  Accordingly, by virtue of the Buildings Ordinance (Application to the New Territories) Ordinance (Cap.121) the canopy was not exempt from, and was caught by, the provisions of the Buildings Ordinance and the section 24 order served on the appellant was valid.[8]  She concluded that the canopy constituted unauthorised building works contrary to section 14 of the Buildings Ordinance and convicted the appellant and imposed a fine of $10,400 for the offence.

12. On intermediate appeal,[9] the Judge reversed the Magistrate’s finding that the extension of the canopy in 2011 amounted to the construction of a new canopy[10] and there was no challenge to this.  He then went on to consider whether, since the canopy was not new, the building of the original canopy in 1985 was lawful.  That issue turned on the question of whether, by reason of regulation 3 of the 1984 Regulations (set out below), the provisions of sections 14 and 24 of the Buildings Ordinance did not apply to the house.  The Judge held that regulation 3 did not apply because the erection of the canopy was not “building works for the alteration of … a building” nor was it “building works … connected with a building”.[11]  The Judge therefore concluded that the erection of the canopy was not exempt from the provisions of the Buildings Ordinance and, since permission to build it had not been obtained, it constituted unauthorised building works and the section 24 order had been properly issued.[12]  The Judge was not persuaded by the appellant that he had reasonable excuse for failing to comply with the section 24 order and, accordingly, the conviction was affirmed and the appeal dismissed. [13]

A.4     Leave to appeal to this Court

13. The appellant sought to challenge the Judge’s conclusion that the building of the canopy in the present case did not constitute “building works … connected with a building” within the meaning of regulation 3(1)(b) of the 1984 Regulations.  On the appellant’s application for certification of a point of law, the Judge observed:

“It was my ruling that although the canopy is physically connected to the building, it is not building works connected with the building. In my judgment, ‘building works connected with the building’ connotes connection for reason or for purpose. To be ‘building works connected with the building’, it has to be of such a nature and a degree of importance that it plays a role to make the building fit for the purpose it is built. Otherwise, the legislature could have simply adopted the wordings ‘building works connected to the building’.”[14]

14. Leave to appeal to this Court was granted by the Appeal Committee in respect of the following question of law, namely:

“Whether a canopy or like structures built or erected prior to 16 October 1987 at or on a building to which the Buildings Ordinance (Application to the New Territories) Regulations (Cap. 322, ‘the Regulations’, now repealed) [i.e. the 1984 Regulations] applies, comes within the meaning of ‘building works connected with the building’ under Regulation 3(1)(b) of the Regulations.”[15]

A.5     The issues in this appeal

15. In the Appellant’s Case it is contended that the Judge’s conclusion that the erection of the canopy was not “building works … connected with the building” within regulation 3(1)(b) of the 1984 Regulations is wrong.[16] For its part, the respondent does not seek to uphold this interpretation of the regulation by the Judge and accepts that the erection of the canopy does fall within the meaning of that phrase in the regulation.[17]  Accordingly, it is common ground between the parties that the Judge’s reasoning leading to the conclusion that the erection of the canopy constituted building works which were not exempt from the Buildings Ordinance cannot be supported.

16. Because of this common ground, the certified question as to whether the building or erection of a canopy prior to 16 October 1987 constitutes “building works … connected with the building” in regulation 3(1)(b) is of diminished importance in this appeal.  Of greater importance is the further question of whether the intermediate appeal was nevertheless rightly dismissed and the conviction properly confirmed by the Judge because the erection of the canopy did constitute building works to which the Buildings Ordinance applies.

B.   The statutory provisions in question

B.1     The particular provisions to be construed in this appeal

17. Regulation 3 of the 1984 Regulations, now repealed, provided as follows:

“3. (1) Sections 4, 9, 14, 15, 16, 17, 21, 23, 24, 28 and 30 of the [Buildings] Ordinance and the regulations made under that Ordinance shall not apply to –

(a) building works for the erection of a building which will, when such works have been carried out, be a building to which this regulation applies;

(b) building works for the alteration of or which are otherwise connected with a building which is, or will when such works have been carried out, be a building to which this regulation applies; or

(c) building works for the demolition of a building to which this regulation applies.

(2) This regulation applies to any building situated in the New Territories which –

(a) …

(b) has a roofed over area not exceeding 65.03m² and does not exceed 7.62m in height;

…”.

18. In section 2 of those regulations, it was provided that “height”:

“when used in relation to a building, means the height measured to the highest part of the building or, in the case of a building which is roofed, to the level of the apex in the case of a pitched roof or to the level of the main roof in the case of a flat roof”.

B.2     The legislative context of those provisions

19. The legislative context of the above provisions is the application of the Buildings Ordinance to the New Territories and the exemption, by different means, of certain village-type houses from the scheme of building regulation contained in that ordinance.

20. The first consolidated legislation relating to the construction of buildings was the Buildings Ordinance 1955 (No. 68 of 1955) which applied to “the island of Hong Kong, Aplichau, Kowloon and New Kowloon”[18] but not the New Territories save to the extent applied by order of the Governor-in-Council.[19]

21. Subsequently, the Buildings Ordinance 1955 (Application to the New Territories) Ordinance 1960 (No. 27 of 1960) (“BO(ANT)O”) was enacted to extend the application of the Buildings Ordinance 1955 to the New Territories. However, the Building Authority was given power under section 4 of the BO(ANT)O to exempt the application of, amongst other sections, section 9 of the Buildings Ordinance 1955[20] to “building works for the erection, alteration or demolition of, or otherwise in connection with, a village-type house or a permitted building situated or to be situated in the New Territories”.  Whether what was to be built constituted, or would constitute, a village-type house was left to the determination of the District Commissioner.[21]

22. In 1960, the BO(ANT)O was amended by the Buildings Ordinance 1955 (Application to the New Territories)(Amendment) Ordinance 1960 (No. 56 of 1960) to replace section 4 of the BO(ANT)O by a new section 4 giving the Governor-in-Council power to make regulations for the exemption of:

“… building works for the erection, alteration or demolition of, or which are otherwise connected with, such buildings, situated or to be situated in the New Territories, as may be specified.”

23. Pursuant to this power, the Buildings Ordinance 1955 (Application to the New Territories) Regulations 1960 (G.N.A. 142 of 1960) (“the 1960 Regulations”) were made which, by regulation 2, exempted from the provisions of the Buildings Ordinance certain dwelling houses in the New Territories which were or would, when built, be of a certain area and height.  In general, these were houses of a simple type, normally occupied by villagers.[22]

24. In 1967, new regulations, the Buildings Ordinance (Application to the New Territories) Regulations 1967 (L.N. 91 of 1967) (“the 1967 Regulations”), were made in substitution for the previous regulations and extended the exemption for certain building works to all New Territories village houses of particular dimensions, namely (for present purposes) one which “has a roofed over area not exceeding 700 square feet and does not exceed 15 feet in height, or, where no structural reinforced concrete is used in its construction, 25 feet in height”.[23] These dimensions were subsequently amended to permit the use of reinforced concrete in two-storey buildings as well as single-storey buildings[24] and to convert the imperial measurements into their metric equivalents so that the relevant building was one which “has a roofed over area not exceeding 65.03m² and does not exceed 7.62m in height” [25] (being the dimensions as they stood in the 1984 Regulations).  The 1967 Regulations as thus amended were how the regulations stood in the 1984 edition of the Ordinances of Hong Kong.

B.3     Legislation subsequent to the erection of the canopy

25. The provisions in the 1984 Regulations were repealed and replaced by the Buildings Ordinance (Application to the New Territories) Ordinance 1987 (Ord. No. 60 of 1987) (Cap.121) (“Cap.121”), which came into operation on 16 October 1987 (i.e. after the erection of the canopy in question in the present case). Cap.121 now applies the Buildings Ordinance to the New Territories, save that the Director of Buildings and Lands may, subject to certain statutory maximum dimensions, issue certificates of exemption in respect of building works in the New Territories.[26]

26. Section 2(1) of Cap.121 now provides that “‘height’ in relation to any building means the perpendicular height of the building measured from the level of its lowest point at ground level to, subject to subsection (4), the level of the highest point of its roof”.  Certain excluded structures of specified maximum dimensions are listed in section 2(4) of Cap.121, namely a stairhood, parapet and water storage tank.

C.   Preliminary matters

27. As noted above, there is no dispute between the parties that the Judge’s interpretation of regulation 3(1)(b) is not supportable.  It will be recalled that the Judge reached the conclusion that, although the erection of the canopy constituted building works, those works did not amount to the “alteration of … a building” or which were otherwise “connected with a building” within that regulation. Although the Judge accepted that the canopy was physically connected to the building, he introduced an additional requirement that the building works, to be “connected with” a relevant building, had to be “of such a nature and a degree of importance that it plays a role to make the building fit for the purpose it is built”.

28. There is no warrant for this additional requirement to be added to the wording of regulation 3(1)(b).  Nothing in the 1984 Regulations, nor in their predecessors, suggests that qualification for exemption for building works from the relevant building regulations was dependent upon those building works being for some specific nature or purpose or on the extent or degree of those works. On the contrary, the qualifying criterion for exemption was concerned with the dimensions of the relevant building (i.e. its size and height).  For this reason, the phrase “connected with the building” is clearly wide enough to cover such other building works physically joined with a building that do not amount to its “erection”, “alteration” or “demolition”.

29. Whilst accepting that the Judge’s reasoning for upholding the conviction could not be supported, the respondent contended that the conviction could nonetheless be sustained on the basis that the appellant’s house could not qualify under the 1984 Regulations for exemption from the Buildings Ordinance because its height, with the addition of the canopy, was greater than the maximum height permitted for exemption.  For its part, the appellant objected to the respondent raising this alternative basis for upholding the conviction because it is a new issue and leave was neither sought nor obtained from the Appeal Committee to raise it.  The appellant contended that the question as to how the height of the building is to be measured is one which should have been the subject of a separate application by the respondent for certification and leave to appeal.

30. It is, however, established that it is not necessary for a respondent to a civil appeal who seeks to defend a result on further or other grounds to obtain leave to advance such grounds; instead, he may simply include those grounds in his printed case.[27] So long as an appellant is not subject to unfair surprise and subject to the rule in Flywin v Strong & Associates Ltd,[28] there is no good reason why the same principle should not apply in the context of a criminal appeal.  In the present case, the point sought to be argued is one which goes to the substantive question of whether the appellant’s conviction was proper or not and, having been raised in the Respondent’s Case, dealt with in the evidence and considered in both courts below, it would be appropriate to entertain the issue on this final appeal in order comprehensively to determine the correctness or otherwise of the appellant’s conviction under appeal.

31. Another preliminary argument that was raised by the appellant in response to the respondent’s contention that the appellant’s house exceeded 7.62m in height because of the addition of the canopy was that, on a true construction of the 1984 Regulations, as long as the height of the original building did not exceed 7.62m, the exemption from the Buildings Ordinance would apply, regardless of whether the height of any building works (in this case, the canopy) would cause an increase in height (as the canopy did in the present case).  The appellant’s argument, which was not entirely clear, entails reading the words “a building which … will when such works have been carried out, be a building to which this regulation applies” in the regulation as only applying to works on a building which has not yet been completed and as not applying to additional works on a building after it has been completed.[29]

32. This narrow and limiting construction of regulation 3(1)(b) contended for by the appellant is clearly wrong.  The words “a building which … will when such works have been carried out, be a building to which this regulation applies” clearly refer to building works on any building (whether completed at some earlier date or not) which, after those works have been carried out, will fall within the dimensions specified in regulation 3(2).  They are intended to ensure that a building, which either (a) is already, or (b) will, after the execution of the alteration or connected works, be larger than the stipulated dimensions in regulation 3(2), is subject to the relevant provisions of the Buildings Ordinance.  The appellant’s reading of the relevant provisions, on the other hand, gives rise to absurd consequences (as to which see paragraph [47] below).

D.     The substantive question in the appeal

D.1    The parties’ contentions as to the building’s height

33. On behalf of the respondent, Mr Martin Hui SC[30] contended that the height of the building in the present case is to be measured to the top of the canopy.  Since it is common ground that the house as originally built was 25 feet high (i.e. 7.62m), the additional height of the canopy, which measures 2.7m in height, will necessarily mean that the building is over the height limit in regulation 3(2)(b) so that it is not exempted from the specified provisions of the Buildings Ordinance.  On the appellant’s behalf, whilst accepting that the top of the canopy is a roof and that the canopy and its roof were part of the building (concessions that were rightly made), Mr K.M. Chong[31] contended that that roof is not the main roof of the house and that its height is to be measured instead to its original flat roof, which is 25 feet high, and the height of the canopy is to be ignored, so that the building is within the height limit in regulation 3(2)(b) and therefore exempt from those provisions of the Buildings Ordinance.

34. It is clear that if the building is to be measured to the top of the canopy it necessarily exceeds the maximum height stipulated in regulation 3(2)(b) of the 1984 Regulations (i.e. 7.62m).  This in turn will have the consequence that the exemption in regulation 3(1), on which the appellant seeks to rely by way of defence to the charge against him, does not apply to his house.  The determination of which of the appellant or the respondent is correct on this issue is therefore the critical question in this appeal and this turns on the proper construction of the definition of “height” in regulation 2 of the 1984 Regulations.

D.2    The statutory definition of “height”

35. The definition of “height” in regulation 2 of the 1984 Regulations (set out above) is divided into three distinct parts.  The term “‘height’, when used in relation to a building, means the height measured”:

(1)    for a building with no roof, e.g. such as a bridge,[32] “to the highest part of the building”; or

(2)    for a building which is roofed with a pitched roof, “to the level of the apex”; or

(3)    for a building which is roofed with a flat roof, “to the level of the main roof”.

36. The appellant’s house is a building which is roofed and not one “with no roof”, so we are concerned here with a structure that is either within part (2) or part (3) of the definition.  Although there is a hint in the photographs of the appellant’s house and canopy that the canopy may have a pitched roof, i.e. an angled or sloping roof, there is no finding of fact to this end and the evidence about the canopy suggests that its height is a uniform 2.7m which would suggest its roof is flat.  So the critical question here is what is meant by the words “to the level of the main roof”?

37. As is now well-established, the modern approach to statutory interpretation is to construe the statutory language having regard to its context and purpose.[33] Contextual and purposive construction is the method by which courts arrive at an interpretation that gives effect to the legislative intention, always bearing in mind that the interpretation arrived by means of that approach must be such as the language of the statute, understood in the light of its context and purpose, can bear.[34]

D.3    The natural and ordinary meaning of “the level of the main roof”

38. The Oxford English Dictionary (2^nd Ed., 1989) (“OED”) defines the noun “roof” as meaning “[t]he outside upper covering of a house or other building; also, the ceiling of a room or other covered part of a house, building, etc.”  A further definition is “[t]he highest point or summit of something; that which completes or covers in”.  So understood, measuring a house to its roof would appear to be a straight forward concept: the house would be measured to its highest outside upper covering.  In this case, this would tend to suggest the top of the canopy, since that has a roof providing an outside upper covering to the structure.

39. However, the phrase in the definition of “height” is “main roof”.  The OED includes as definitions of the adjective “main” the meaning “[c]hief in size or extent; constituting the bulk or principal part; the chief part of” and “[g]reat or important above others of the kind; of pre-eminent importance; principal, chief, leading”.  This does provide some support for the appellant’s case in this appeal that the “main roof” of the house is the roof which is the principal roof in the structural sense; i.e., in the case of the appellant’s house, the original flat roof of the house as built in 1985 rather than the roof of the canopy.

40. I do not, however, think that the language of the definition necessarily points to this conclusion.  On the contrary, in my view, the words “main” and “roof” must be construed together and, when combined, are intended as a matter of natural and ordinary language to mean the top-most, or highest, outside upper covering of the structure.  This is strongly supported by the fact that the word “roof” itself is a reference to the highest point of a house or building.  It is also supported by the anomalous and confusing result that would arise if a flat-roofed house had an annex (itself with a flat roof) built on top of it covering exactly half of the floor area of the house.  There would be two equal sized flat roof areas exposed to the elements.  Which of them is the “main roof”? The natural or ordinary meaning of the words would, in my view, lead to the answer that it is the roof of the annex.  To read qualitative characteristics, such as size, material, strength or proportion, into the definition would result in having to make value judgments of a potentially subjective, and therefore possibly arbitrary, nature as to the quality of the roof of the annex.

41. It is true that the Legislature could have simply used the word “highest” instead of “main”.  However, since a flat roof is normally intended to be accessible and to provide a usable area, that might have led to uncertainty in respect of minor structures on the flat roof (to which I shall return below). Moreover, the conclusion I have reached as to the natural and ordinary meaning of the words “main roof” is emphatically reinforced by having regard to the context and purpose of the statutory language.

D.4    The contextual meaning of “the level of the main roof”

42. The phrase “the level of the main roof” is one measuring point out of three included in the definition of the term “height” in regulation 2.  The other two measuring points are clearly and expressly references to the highest point of the relevant types of building and this was accepted by Mr Chong. First, a building with no roof is measured to its “highest part”.  Next, a building with a pitched roof is measured to “the level of the apex”.  The apex of a thing is its top or highest part and, in the case of a pitched roof, its apex is the highest point created by the pitch.  In the context of a pitched roof, it may be noted that, in Re Minos Estate Limited,[35] the Full Court considered the issue of how height was to be determined under the 1967 Regulations (which contained the same definition of “height” as the 1984 Regulations) in respect of a house with two pitched roofs.  Each member of the court held that the height of the house was to be measured to the top of the higher of the two apexes.[36]  This conclusion is consistent with the natural and ordinary meaning of “apex” (i.e. the top or highest part of something forming a point) and must be correct.

43. Contextually within regulation 2, therefore, it is clear that the measurement of height is clearly to be taken, in respect of these two measuring points, to the highest point.  It would therefore be strange if the measuring point for a building with a flat roof were to be taken to a “main roof” which was not the highest point of the building.  Apart from inconsistency, it would create the anomaly that a building with a flat roof, which was 25 feet (7.62m) high, could have a sizeable structure built on that flat roof which would not count towards its overall height.  It would be most surprising if this were the case.  A further anomaly would be the case of a house with a flat roof on which a canopy or structure with a pitched roof was then constructed.  Would that building be one with a flat roof or a pitched roof?  If the latter, its height would be measured to the apex of the canopy or additional structure.  But if the former, would its height only be measured to the flat roof?  That, again, would seem most surprising.

44. The contextual argument does not stop with regulation 2.  If one has regard to the other provisions of the 1984 Regulations, and in particular regulation 3, it is clear that the whole context of the legislation is the determination of maximum dimensions for small village-type houses in the New Territories that will, exceptionally, be exempt from the normal rigours of building control and supervision (and, as shown above, this is a consistent theme through the legislative history).  Furthermore, as already noted in paragraph [32] above, it is plain from the express wording of regulation 3(1) that the provision is concerned to address the dimensions of the building after the completion of works, whether those works are for the erection or alteration of the building or are in connection with the building.  In regulation 3(1)(b) in relation to alteration works or works in connection with the building, this is clear from the inclusion of the reference to “a building which … will when such works have been carried out, be a building to which this regulation applies”. The 1984 Regulations therefore look to the completed building including any additional works.

45. In context, therefore, the words “the level of the main roof” in the definition of “height” indicate that the building is to be measured to its highest point and not to some point lower than that.

D.5    The purposive meaning of “the level of the main roof”

46. The long title of the Buildings Ordinance states that its purpose is “[t]o provide for the planning, design and construction of buildings and associated works; to make provision for the rendering safe of dangerous buildings and land; and to make provision for matters connected therewith.”  The purpose of the 1984 Regulations is to extend exemptions from various provisions of the Buildings Ordinance to building works in respect of houses in the New Territories of certain limited dimensions.  The qualifying characteristics for exemption are therefore the limited dimensions of the house, which are now, and have for some time been, the metric equivalent of 700 square feet in area and 25 feet in height (i.e. 65.03m² and 7.62m respectively).

47. Given that statutory purpose, construing the words “the level of the main roof” to mean that buildings exceeding the limit of the dimensions for exemption are nevertheless exempt from the relevant provisions of the Buildings Ordinance would not be giving them an interpretation consistent with their statutory purpose.  On the contrary, it would lead to the anomaly (bordering on the absurd) that so long as a New Territories house was built with a flat roof to a height of 25 feet, it would be possible thereafter to build an annex covering a substantial part of the roof area which was, say, 10 or even 20 feet high but which did not count towards the overall height of the house for the purposes of determining if it was exempt from the provisions of the Buildings Ordinance.  Since it is the dimensions of the house that justify its exemption from the provisions designed to ensure a safe construction, it would not make sense to exclude annexes built on a flat roof in this way.  But that would be the consequence of accepting the appellant’s argument in this appeal.

D.6    Height measured to level of the highest roof

48. For the foregoing reasons, I would conclude that the proper construction of the words “the level of the main roof” in regulation 2 of the 1984 Regulations requires the building in question to be measured to the highest flat roof of the building providing substantial shelter to its occupants (and ignoring minor structures, discussed below).  In the present case, such substantial shelter is clearly provided since the flat roof of the canopy is a permanent structure, covers 460 square feet of the rooftop and provides substantial cover to anyone using the area beneath the canopy.  The height of the canopy is 2.7m above the height of the original house, which itself was 7.62m.  The total height of the appellant’s house is therefore 10.32m, which is in excess of the maximum height to qualify for exemption under regulation 3(1).

D.7    Miscellaneous arguments raised by the appellant

49. The appellant sought to rely on the definition of “height” in Cap.121 (set out in Section B.3 above), introduced in 1987, to suggest that there was a consistent theme in the definition of “height” in the 1984 Regulations, namely that height was to be measured to the roof of the main structure of a building, excluding certain other parts on top of a flat roof that might be higher than the building’s “main roof”.  As the Court recently held, though, there may be difficulties in referring to a subsequent, amending enactment as an aid to construction of an earlier statute.[37] In any event, Cap.121 clearly cannot be regarded as a relevant part of the context of the legislation being construed, in this case the 1984 Regulations.

50. In the Appellant’s Case,[38] it was contended that the Government’s Small House Policy supports the conclusion that the Legislature intended a deliberate concession to exempt all buildings works in respect of village-type houses from compliance with the regulatory regime in the Buildings Ordinance.  However, this argument is not supported by a review of the legislative history of the legislation applying the Buildings Ordinance to the New Territories, which is summarised above.  It is clear that the relevant legislation eventually resulting in the 1984 Regulations pre-dated the formulation of the Small House Policy and the policy does not assist in the interpretation of the relevant provisions.  In any event, the Small House Policy was designed to exempt certain simple structures of limited dimensions from the scheme of the Buildings Ordinance and there is nothing in the policy to suggest that the dimensions were not to be measured in an orthodox manner.  On the contrary, there is nothing in the policy to suggest that a house with a flat roof was to be measured in such a way that its height would not be the measurement to its highest point.

51. It was also submitted on behalf of the appellant that the statutory provisions are penal and so should not be construed so as to create criminal liability unless clear.  The fact that a statute renders a specified activity criminal is not, however, a reason for giving the definition of the specified activity an artificially narrow meaning.  It is merely a reason (although not always a decisive one) for giving the definition the narrower meaning, when it is, on a fair reading, otherwise equally capable of having a wider or narrower meaning.  Since, in my view, on a proper construction of the definition of “height”, it is clear that the height of the canopy is to be included in the measurement of the height of the house, this principle provides no good reason to apply the appellant’s different and, in my view, incorrect construction of that definition.

52. A further submission advanced on behalf of the appellant was that it was sufficient to subject the appellant’s house to control by way of enforcement of the lease conditions in the New Grant.  This was made in the context of a submission in the Appellant’s Case that, prior to the enactment of Cap.121 in 1987, there was no legislative control over the erection, alteration and demolition of village-type houses in the New Territories and that building works resulting in deviation from a contractual building licence in a lease could only be “purged” by way of lease enforcement action by the Government. [39] In the New Grant, “height” was defined as being measured “to the highest part of the building, excluding one stairhood not exceeding 7.44 square metres in area or 2.14 metres in height erected and used solely for the purpose of gaining access to the roof of the building and excluding also any parapet not exceeding 1.22 metres in height”.  Mr Chong’s argument appeared to be that this definition in the New Grant supported the appellant’s construction of “height” in regulation 2 of the 1984 Regulations and reinforced the contention that “the level of the main roof” would not necessarily be the highest point of the building.

53. There is no basis for using the terms of the New Grant as a means to construe the relevant provisions in the 1984 Regulations.  In any event, even applying the definition of “height” in the New Grant, the height of the appellant’s house would include the height of the canopy, since that does not fall within either of the excluded parts in that contractual definition.  The appellant’s further submission that, prior to the enactment of Cap.121, there was no legislative control over the erection, alteration and demolition of village-type houses in the New Territories is simply not borne out by a review of the relevant legislation (see Section B.2 above).

54. What the terms of the New Grant do highlight is that, insofar as the Government was concerned, minor additional structures on the flat roof would not count towards its total height.  On what I conclude (in Section D.6 above) to be the proper construction of the phrase “the level of the main roof” in regulation 2 of the 1984 Regulations, i.e. the highest flat roof of the building providing substantial shelter to its occupants, a similar conclusion is reached.   Although each case will depend on its particular facts, this construction will generally exclude a minor additional flat roof constituted by a stairhood, a parapet or a small water storage tank or similar structure.

E.   Conclusion and disposition

55. For these reasons, I would accept the respondent’s contention that, notwithstanding the Judge’s erroneous construction of regulation 3(1)(b) of the 1984 Regulations, the appellant’s conviction under the summons was properly upheld.  The provisions of the Buildings Ordinance did apply to the construction of the canopy in question and, since its construction constituted unauthorised building works, the section 24 order was properly served on the appellant.  In the absence of any defence of reasonable excuse, the appellant was properly convicted for failure to comply with that section 24 order.

56. I would therefore dismiss this appeal and make an order nisi that there be no order as to costs.  In the present appeal, although the conviction has been upheld on a different ground (not identified on the application for leave to appeal), the appellant succeeded on the point of law raised by the Judge’s construction of regulation 3(1)(b).

Lord Neuberger of Abbotsbury NPJ:

57. I agree with the judgment of Mr Justice Fok PJ.