CHUI MARJORIE CHE YING, CHUI TONI YIM v. APPEAL TRIBUNAL (BUILDINGS), BUILDING AUTHORITY

FAMV No. 104 of 2025

[2025] HKCFA21

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 104 OF 2025 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO. 291 OF 2022)

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DETERMINATION

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Mr Justice Ribeiro PJ:

1.  This is the Determination of the Appeal Committee.  At the hearing, we dismissed this application for leave to appeal with costs.  We now provide our reasons.

2.  The applicants are the owners of Unit 11B in the building concerned.  Pursuant to s 28(3) of the Buildings Ordinance (“BO”)[1] the Building Authority (“BA”) served on them an order requiring them to repair a defective drain which exclusively served their unit.  The applicants objected, arguing that such repairs were the responsibility of the owners of Unit 10B downstairs because, due to the building’s design, the drain passed through the floor slab and the defective section was affixed to the downstairs flat’s ceiling (behind a false ceiling) as it exited the building to join the main drainage pipe outside. 

3.  The issue as to whether the order was correctly served on the applicants turns on the true construction of s 28(3) which materially provides as follows:

(3)  Where in the opinion of the Building Authority the drains ... of any building are inadequate or in a defective or insanitary condition he may by an order in writing served on the owner of such building require—   

(a)  such drainage works as may be specified in the order to be carried out;

(b)  an authorized person to be appointed to carry out such investigation in relation to the drains ... of such building as may be so specified; and

(c)  the submission for approval by the Building Authority of proposals for drainage works to be carried out to remedy the inadequacy or the defective or insanitary condition, being proposals based on the findings of the investigation,

within such time or times as may be specified in the order.

4.  Section 28(3) must be read together with the BO’s definition of “building” in s 2 which reads:

‘building’ includes the whole, or any part, of any ... building ...

5.  The applicants advanced two constructions:

(a)  First, that the “owner” of the building in s 28(3) is the owner of the unit in which the defective section of the drain is located, regarded as a fixture or fitting of that unit to which such owner has exclusive possession, ie, the owner of Unit 10B in the present case.

(b)  Secondly, as a fall-back argument, that the construction of Coleman J (who held in the applicants’ favour)[2] is correct, namely, that “building” refers to the entire building and “owner” includes all co-owners, so that the order had to be served on all of them, leaving them to sort out liability amongst themselves by reference to the Deed of Mutual Covenant (“DMC”) or some other means.

6.  The BA had argued that “owner” includes all the co-owners, but that the BA has a discretion to select the particular owner to be served – in this case, the unit owner who had the exclusive use and benefit of the defective drain, as per the policy indicated in their published Manual.

7.  The Court of Appeal[3] rejected all the above-mentioned constructions. It held that since “building” includes part of a building, in the present context, the owner in question is the owner of the unit which is exclusively served by the defective drain, ie, the applicants, this not being a matter of discretion but of construction.

8.  In our view, the Court of Appeal’s construction is plainly correct and the competing views are not reasonably arguable.  The applicants’ version finds no support in any of the statutory language properly construed.  Nor does the BA’s discretionary approach.  With respect, Coleman J’s construction is highly impracticable, requiring the BA to serve every owner in the building, dragging them all in when they may not be concerned in the slightest with a purely localised problem, such as with the defective drain affecting only Units 11B and 10B.  Such a construction serves no discernible statutory purpose.

9.  The starting-point on construction, both textually and purposively, is that in the BO, “building” includes “the whole, or any part, of any ... building”.  Thus, if the context so requires, a reference to a “building” should be understood to be a reference to a relevant “part of a building”.  So when s 28(3) refers to “the drains ... of any building” that phrase can, and in circumstances involving a localised problem, should be understood to refer to the drains serving that particular part of a building, as the Court of Appeal pointed out.[4]

10.  This enables the relevant “owner” to be identified.  When s 28(3) says that the BA may serve the order on “the owner of such building” it means the owner of the part of the building served by the defective drain.

11.  On this construction, the s 28(3) concepts of “building”, “defective drains” and “owner” cohere to address the practical problem of the defective drains, allocating responsibility for repairs on the relevant owner.  The drain in this case exclusively serves Unit 11B.  It is a drain “of” or serving or appurtenant to that unit.  The applicants are its owners.  Thus, s 28(3) empowered the BA to require them to effect the repairs.

12.  The applicants contested the aforesaid construction arguing that s 28(3) does not cater for the situation where repairs require access to some other unit, such as the flat downstairs.  Because, so they contended, the BO provides no mechanism to enable them to gain such access, the Court of Appeal’s construction is unworkable or “absurd” and should not be adopted.  They prayed in aid a similar view espoused by Coleman J.[5]

13.  That argument rests on the false premise that the BO provides no means of obtaining such access.  BO s 22 provides the means, materially stating as follows:

“(1) Subject to subsection (1A), the Building Authority or an authorized officer may at any time enter and where necessary, in the presence of a police officer, break into any premises or enter upon any land ...

(b) to inspect or test any ... drainage works ...;

(c) to ascertain whether the provisions of this Ordinance or of any notice ... hereunder are being complied with;

(d) to carry out or cause to be carried out any work which he is authorized to carry out under this Ordinance.

(1A) Except in case of emergency, neither the Building Authority nor an authorized officer may enter or break into the premises, or enter upon the land under subsection (1) unless—

(a) the entry is permitted by the owner, occupier, or person who appears to have control or management of the premises or land; or

(b)  a warrant is obtained under subsection (1B).

(1B)     A magistrate may issue a warrant authorizing the Building Authority or an authorized officer to enter and, if necessary, break into any premises or enter upon any land for any of the purposes mentioned in subsection (1) if the magistrate is satisfied by information on oath that—

(a)  there are reasonable grounds for suspecting ...

(iv)  that the drains or sewers of the premises or land are in a defective or insanitary condition; or

(v)  that a notice or order served under this Ordinance has not been complied with;

(b)  the entry into the premises or upon the land by the Building Authority or an authorized officer—

(i)  was refused; or

(ii)  could not be gained despite a visit made to the premises or land on at least 2 different days; and

(c)  notice of the intention to apply for a warrant has been served on the owner or occupier of the premises or land.

14.  Thus, under s 22, the magistrate is empowered to issue a warrant where there are reasonable grounds for suspecting “that the drains ... of the premises ... are in a defective or insanitary condition” mirroring the words of s 28(3).  Such a warrant may also be issued where “a notice or order served under this Ordinance has not been complied with”, which would apply to a s 28(3) order.  The power to gain entry under s 22 applies to “any premises or ... any land” obviously encompassing premises whose owners are not themselves subject to repair orders.   As everyone acknowledges, in cases like the present, the affected “other owner” (who is likely to have made the complaint to the Buildings Department) might be expected to welcome execution of the repair order at the expense of the owner served and so readily give consent to entry, as s 22 envisages.  The BA may thus gain entry by their permission or, if such entry is refused, pursuant to a warrant issued under s 22 after due notice is given.

15.  Although Au JA did not spell out the way in which s 22 answers the applicants’ unworkability argument, he did indeed refer to that section as providing an option to ensure effective enforcement of the repair order.[6]

16.  Moreover, quite apart from s 22 and the BO, further enforcement options may exist under commonly found provisions of a DMC which provide for such access.  This applies in the present case where, as the Building Appeal Tribunal noted, under Clause 3.3.1 of the DMC, the owner of unit 10B granted a quasi-easement to the applicants to allow the pipe to pass through unit 10B.[7]  At common law, grant of an easement impliedly provides for a right of access to carry out any necessary repairs.[8]  That analysis applies to quasi-easements in the context of a multi-storey building.

17.  Thus, the applicants’ submission that the Court of Appeal’s interpretation is unworkable or “absurd” because of lack of any means of access to the neighbouring unit is untenable.

18.  We accordingly decided that no reasonably arguable basis exists for challenging the Court of Appeal’s decision and refused leave.