THE INCORPORATED OWNERS OF CHAMPION COURT v. PANG PING FAN PETER AND ANOTHER

HCMP 359/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 359 OF 2011

(ON AN INTENDED APPEAL FROM DCCJ NO. 55 OF 2005)

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DECISION

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Hon Kwan JA (giving the decision of the Court):

1.  This is an application for leave to appeal to the Court of Appeal from two decisions of His Honour Judge Lok in DCCJ 55/2006. The applicant, Man Yuk Ying Vivian, is the 2^nd defendant in that action. The first decision, made on 4 November 2010, was in an application by the plaintiff, the Incorporated Owners of Champion Court, to enforce the judgment and order made by Deputy District Judge Wesley Wong in the proceedings on 6 July 2006. The second decision, made on 3 January 2011, affirmed the earlier decision on 4 November in the defendants’ application for review.

2.  The present application is determined on the written submissions of the 2^nd defendant without an oral hearing, pursuant to the powers of this court under Order 59 rule 2A(5)(a) of the Rules of the High Court.  The plaintiff has not filed any opposing statement in the application.

3.  Under section 63A(2) of the District Court Ordinance, Cap. 336, leave to appeal to the Court of Appeal shall not be granted unless the Court of Appeal is satisfied that the appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard.

The background

4.  We will first set out the relevant background matters.

5.  The 2^nd defendant and Pang Ping Fan Peter, the 1^st defendant in the action, are and were at all material times the registered owners of the property known as Flat A on 23^rd Floor of Champion Court, including its Main Roof as shown in the portion coloured pink in the roof plan annexed to an assignment registered by memorial No. 925732 (“the Premises”). 

6.  The plaintiff brought the action against them in 2005.  The plaintiff’s claim, as stated in paragraph 2 of the judgment of the Deputy District Judge, was that the defendants had been in breach of the deed of mutual covenant in that without the plaintiff’s consent, they had constructed an internal staircase in their premises leading to the roof, and that they had constructed various walls, thatched roof and other permanent partitions to enclose a portion of the Main Roof for their exclusive use.

7.  After trial, and on 6 July 2006, the Deputy District Judge gave judgment on the plaintiff’s claim against the defendants and dismissed the counterclaim. He ordered judgment be entered for the plaintiff in the terms of paragraph 1 of the prayer for relief in the statement of claim, namely, that the defendants do cause to be removed immediately all the said illegal structures and to rectify the Premises to its original state and condition. 

8.  The defendants brought an appeal against that judgment in CACV 317/2006. Judgment was given on 23 May 2008 dismissing their appeal. The 2^nd defendant sought leave to appeal to the Court of Final Appeal. Her application was dismissed by the Court of Appeal on 15 January 2009.

9.  On 28 January 2010, the plaintiff effected personal service of the judgment of the Deputy District Judge on the 2^nd defendant endorsed with a penal notice. On 27 May 2010, the plaintiff issued the summons against the defendants, which resulted in the decision of Judge Lok on 4 November. That summons was made pursuant to Order 45 rule 8 of the Rules of the District Court, Cap. 336H, which provides that if a mandatory order is not complied with, without prejudice to its powers to punish the disobedient party for contempt, the court may direct that the act required to be done may be done by the party by whom the order was obtained, at the cost of the disobedient party. Paragraph 1 of the summons sought an order that the plaintiff be at liberty to instruct contractors at the cost of the defendants to enter into the suit premises, subject to not less than 14 days’ notice to the occupants and stating in the notice the exact working hours and dates, to remove the illegal structures and rectify the suit premises to its original state and condition as ordered by the Deputy District Judge.

10.  The plaintiff filed a total of five affirmations in that application, two from its chairman, one from its former chairman and two from its solicitor. The defendants filed two affirmations by the 2^nd defendant. In short, she contended that on the proper interpretation of the judgment and order of the Deputy District Judge, the defendants were required to remove the illegal structures in common parts of the building, and since the structures being the subject matter of the plaintiff’s application are situated in the defendants’ property and not in common parts, the defendants are not obliged to remove them.

11.  Prior to the hearing on 4 November 2010, the 2^nd defendant faxed her letter to the court enclosing a sick leave certificate with some referral forms and sought an adjournment. Judge Lok refused to adjourn the hearing, noting that she did not state clearly in the fax what exactly was her sickness, that she had advanced the same reason to secure an adjournment of a taxation hearing in May 2010, that the defendants have not paid any of the taxed costs in the action and the appeal, and that she did not explain why the 1^st defendant could not attend on her behalf.

12.  Judge Lok was satisfied on the evidence before him, as contained in the two affirmations of the plaintiff’s solicitor and the affirmation of its former chairman, that there are still illegal structures in the Premises. He rejected the 2^nd defendant’s interpretation of the judgment of the Deputy District Judge as devoid of merit. He granted the plaintiff’s application as per paragraph 1 of the summons and ordered the defendants to pay costs of the application on an indemnity basis, taking the view that the defendants have deliberately failed to comply with the order given in 2006 notwithstanding their appeal has been dismissed.

13.  On 9 November 2010, the defendants issued a summons to set aside the order of Judge Lok made on 4 November, supported by two further affirmations of the 2^nd defendant. She produced a coloured roof plan retrieved from the Land Registry, showing a much larger area coloured in pink to be the defendants’ property, as compared to the black and white roof plan exhibited to the affirmation of the plaintiff’s solicitor. On the basis of that black and white plan, the plaintiff’s solicitor had deposed that the portion of the roof designated as “drying shelter” was not coloured pink, which is incorrect as appeared from the coloured roof plan. She submitted that the plaintiff had misled the court by producing a wrong roof plan before the Deputy District Judge in 2006 and in the application for execution of the judgment in 2010. The summons was dismissed by Judge Lok on 3 January 2011, with costs to the plaintiff on an indemnity basis.

14.  On 11 January 2011, the defendants issued a summons for leave to appeal the orders of Judge Lok made on 4 November 2010 and 3 January 2011. This was supported by “Defendants’ Grounds of Appeal” and “Defendants’ Submissions” both dated 11 January, and the 6^th affirmation of the 2^nd defendant. Judge Lok refused leave on 2 March 2011. Costs were again awarded to the plaintiff on an indemnity basis.

15.  On 8 March 2011, the 2^nd defendant issued the present summons on her own, seeking leave to appeal the various decisions of Judge Lok from the Court of Appeal. This was supported by “Defendants’ Grounds of Appeal” and “Defendants’ Submissions”, both dated 8 March 2011.

The grounds of appeal

16.  We do not propose to discuss all the grounds of appeal raised by the 2^nd defendant.  We will focus on the main grounds.

17.  The recurrent theme of the 2^nd defendant is what she put forward as the proper interpretation of paragraph 16 of the judgment of the Deputy District Judge. She alleged that Judge Lok was in error in his interpretation of that judgment in that he ignored paragraph 16 and substituted the judgment with his view which is tantamount to a retrial and new judgment. According to her, what was decided in paragraph 16 was that the structures erected in the defendants’ part of the roof cannot be regarded as illegal structures and that those structures in the other parts of the roof – being not the defendants’ part – are illegal structures, with the exception of some specified items.

18.  In support of the above interpretation, she raised the following arguments:

(1) The Deputy District Judge had visited the roof area. However, he had only the black and white roof plan and was misled into thinking that the defendants’ part was a much smaller area when he referred to “the Defendants part of the roof” and “other parts of the roof including the drying area” in paragraph 16 of the judgment. In fact Roof A and Roof B each occupied half of the whole roof area and the part described as “drying shelter” in Roof A is also part of the defendants’ property. The black and white roof plan was again presented to Judge Lok at the hearing in 2010, although the correct roof plan was presented to the Court of Appeal in CACV 317/2006 [appeal bundle page 99].

(2) The plaintiff’s solicitors had misled the Deputy District Judge and Judge Lok with the black and white roof plan. As the Court of Appeal in CACV 317/2006 did not know the Deputy District Judge had relied on the wrong plan, the Court of Appeal did not understand paragraph 16 of his judgment.

(3) The defendants had not previously noticed the meaning of paragraph 16 of the judgment when they appealed the decision of the Deputy District Judge. Had they known the meaning of this paragraph, they would not have appealed.

(4) The hearing before the Court of Appeal in CACV 317/2006 was unfair. According to paragraph 16 of the judgment, those structures within the defendants’ part did not require demolition. In those circumstances, the Court of Appeal should have asked the defendants whether they still wished to proceed with the appeal.

19.  The 2^nd defendant further claimed that execution of the judgment and order of the Deputy District Judge should be stayed until clarification is given as to what structures were required to be demolished and what structures were not so required.

The judgment in CACV 317/2006

20.  The 2^nd defendant’s interpretation of the judgment and order of the Deputy District Judge is untenable. The judgment of the Court of Appeal in CACV 317/2006, which explained and upheld the decision of the Deputy District Judge, is a final judgment binding on the parties. None of the parties are permitted to go behind the judgment of the Court of Appeal.

21.  The judgment of the Court of Appeal contained a clear description of the layout of the roof and the illegal structures and a clear statement as to what the defendants are required to do under the order of the court. These relevant paragraphs are set out below:

“4. Since 1992, the Defendants have been the registered owners of Flat 23A and part of the roof.  The original building plans annexed to the title deeds show that in the middle of that part of the roof, there was a structure described as a “drying shelter” (Appeal Bundle p.99), presumably a canopy to enable the occupants of Flat 23A to hang their laundry for drying when it rained. According to the trial judge (who made a site visit), the roof of the canopy was made of concrete and it was originally supported by posts (Judgment paragraph 16). 

5. It is not disputed that at the date these proceedings were instituted in 2005, the Defendants’ premises contained the following alterations from the building as constructed:-

(1) an opening has been made in the ceiling of Flat 23A and an internal staircase built leading up to the roof, where an opening has been cut in the floor (Appeal Bundle p.107);

(2) the “drying shelter” canopy has been extended up to the front of the building by hard plastic sheets, whilst on the other side the shelter has been extended to the back of the building by a  concrete slab (Appeal Bundle pp. 116-7).  This extension has formed the ceiling for a structure on the roof, enclosed on the sides by hard plastic sheets at the front half and by what appear to be concrete walls at the back half.  A cage of ironwire mesh covers those parts of the structure covered by hard plastic sheets (Appeal Bundle p.112).

9. In his judgment, the judge held that

…

- with the exception of the drying shelter, the roofs and partitions or walls built on the roof were illegal structures which contravened cl.4(g)(iii) of the DMC (paragraphs 15-16);

- the opening cut in the floor of the roof for the internal staircase contravened cl.10(a)of the DMC, that the Defendants could not rely on laches and that the Plaintiff had a duty and a right to ask the Defendants to comply with the terms of the DMC (paragraphs 17-19).

10. The judge ordered that the Defendants remove the illegal structures and rectify Flat 23A and its part of the roof to its original state, and dismissed the Counterclaim.  

16. First, that the structure on the roof was illegal is clear.  The Buildings Department was informed of the subject structure by a letter from the Plaintiff dated 16 June 2004 and after an inspection of the structure on the roof (but not the opening between Flat 23A and the roof which required internal access), the Buildings Department replied on 4 December 2004 confirming that the illegal structure on the roof was an unauthorised building work and that enforcement action will be taken.  There were therefore breaches of cl. 10(a) and (b). 

20. As for ground (D), I do not agree that the Defendants would be unable to comply with the judge’s order.  The building plan of the roof has been annexed to the title deeds.  All that the Defendants need to do is demolish the alterations, fill in the opening and reinstate the drying shelter.  No doubt qualified contractors would be able to advise them what ancillary works are required.  There is no evidence that other plans are required or that they are no longer available at the Building Authority.”

22.  In the enforcement proceedings, the plaintiff produced a further notice issued by the Building Authority to the defendants on 12 January 2007 notifying them that a structure on and over the main roof has been erected in contravention of the Buildings Ordinance, and that the said building work should be demolished or altered to comply with the statute. This notice, which is registered against the Premises in the Land Registry, has not been complied with.

Conclusion

23.  There is no valid basis for the defendants not to comply with the judgment and order of the Deputy District Judge to demolish and remove the illegal structures and rectify the Premises to its original state and condition. It is an abuse of process for the 2^nd defendant to seek to place a different interpretation on the effect of the rulings of the Deputy District Judge that is contrary to the judgment of the Court of Appeal. Her application for leave to appeal against the decisions of Judge Lok in the enforcement proceedings must be refused. As the plaintiff has not taken part in this application, it would not be necessary to provide for its costs.

24.  It would be appropriate in the circumstances to make an order pursuant to Order 59 rule 2A(8) of the Rules of the High Court.  We order that no party may request the determination to be reconsidered at an oral hearing inter partes, as this application for leave to appeal is entirely without merit.