HKSAR v. GEMSLAND HOTELS LTD

HCMA 554/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 554 OF 2016

(ON APPEAL FROM ESS NO 2245 OF 2016)

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J U D G M E N T

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1.  The appellant was summonsed for the offence of “failing to comply with an order of the Building Authority without reasonable excuse”, contrary to s.40(1BA) of the Buildings Ordinance, Cap 123 (“the Ordinance”). The appellant pleaded not guilty before a Special Magistrate (“the Magistrate”) and engaged Mr Choy Bing Wing (“Mr Choy”) to represent it in the proceedings.

2.  At the beginning of the trial, Mr Choy left the courtroom after the plea had been taken alleging the case a malicious prosecution^[1]. The Magistrate granted the prosecution’s application to proceed with the trial in the absence of Mr Choy.

3.  Having considered the prosecution’s evidence, as well as the oral and written submissions made by Mr Choy in the two pre-trial review hearings^[2] and on the first day of trial^[3] before he left the court room ^[4], the Magistrate convicted the appellant of the offence. 

4.  The appellant now appeals against the conviction. Mr Choy is again retained as the appellant’s representative in the appeal proceedings. 

THE PROSECUTION CASE

5.  The subject matter in this case is a signboard (“the Signboard”) facing Lockhart Road with the description “Hotel Beverly” mounted to the external wall of the 3^rd and 4^th floors of Capital Building (“the Building”) at No 181, Lockhart Road.The Signboard (about 12 meters in width and 6 meters in height) consisted of neon florescent tubes and metal bars and was mounted to the Building by a grid metal frame with screws and nails.Hotel Beverly (“the Hotel”) operated at the 4^th floor of the Building and the appellant was its operator.

6.  PW1 was a Building Surveyor of the Buildings Department (“BD”) responsible for inspecting signboards at buildings in Hong Kong and making recommendation or issuing order once unauthorized signboard was discovered.PW2 was a Survey Officer assisting PW1.On 11 April 2013, PW1 and PW2 discovered the Signboard which was erected without the approval of the Building Authority (“the Authority”). 

7.  An order for the demolition of the Signboard under s.24 of the Ordinance was issued on 19 June 2013 (“the Order”).

8.  In the afternoon of 19 June 2013, a second inspection by PW1 and PW2 was conducted and confirmed that the Signboard still existed.The Order was posted on the wall of the lobby near the reception counter inside the Hotel.A cover letter attached with the Order was also posted to the registered address of the appellant by registered mail.The Order was properly served.

9.  The appellant lodged an appeal against the Order to the Appeal Tribunal on 4 July 2013.That appeal was dismissed on 13 March 2015.No judicial review was lodged by the appellant against the determination of the Appeal Tribunal.

10.  On 1 April 2015, a compliance inspection was conducted by PW4, Building Surveyor of BD and it was confirmed that the Signboard still existed. 

11.  The appellant was hence summonsed for the non-compliance of the Order “between 14 March 2015 and 1 April 2015”. 

THE DEFENCE CASE

12.  The prosecuting counsel at the trial, based on the appellant’s List of Issues, Questionnaire for the Pre-trial Review hearings and  submissions made by Mr Choy, identified and quoted the appellant’s defences as follows^[5]:

(1)  The Authority has no jurisdiction to issue orders under the Ordinance for the removal of signboards.

(2)  The law is clear that when a statutory power is conferred for the first time (s.2, Cap 132 in this case) upon a court, and the mode (s.105 of Cap 132) of exercising it is pointed out, it means that no other mode is to be adopted.^[6]

(3)  The judge in HCMA 5/2003 erred in law by treating s.2 construction works of signboard of Cap 132 as that of s.2 construction works of building of the Ordinance by Her [sic] mutation of common law authority into statutory law of the Ordinance, contravening Article 8 of the Basic Law.

(4)  The statutory law under s.24(2)(c) of the Ordinance has no retrospective effect for signs erected prior to December 2004.^[7]

(5)  The structure located outside the building lot is not under the control of the Ordinance.It is s.105 of Cap 132 that confers the statutory power upon the Buildings Department to deal with signboards.

(6)  The prosecution failed to commence action within the time limit under s.40(8) of the Ordinance and the case therefore should be time-barred.

REASONS FOR VERDICT

13.  The Magistrate found that the issues raised by the appellant boiled down as follows^[8]:

(1)  whether the Signboard falls within the definition of “Building Works” in s.2 of the Ordinance;

(2)  whether the Signboard is not covered by the Ordinance and can only be dealt with under s.105 of the Public and Municipal Services Ordinance (Cap 132);

(3)  whether the issue of retrospective effect of s.2 and s.24(2)(c) of the Ordinance arises if the Signboard was erected before December 2004;

(4)  whether the prosecution fails to commence within the time limit and the prosecution of the present case should be time barred; and

(5)  whether there was any reasonable excuse for the Defendant’s non-compliance.

14.  The Magistrate found PW1 to PW5 truthful witnesses and accepted all their evidence.He then proceeded to analyze the issues in the case.

Q1: Whether the Signboard falls within the definition of “Buildings Works” in the Ordinance

15.  Having considered the size and structure of the Signboard, the way it was attached to the Building, and that it was erected over Lockhart Road which is a busy street, the Magistrate held that the Signboard was an “addition to the Building” falling within the definition of “Building Works” in s.2 of the Ordinance.^[9]

16.  In addition to his finding that the Signboard was an addition to the building and therefore building works under the Ordinance, the Magistrate made a further observation that Part VI of the Ordinance provided the channel for the appellant to challenge the validity of the Order.The appellant’s appeal to the Appeal Tribunal was dismissed on 13 March 2015.The appellant could not re-challenge the validity of the Order in a criminal proceeding. 

Q2: Whether the Signboard can only be dealt with under s.105 of Cap 132

17.  Mr Choy argued that s.105 of Cap 132 covers situation when the “hoarding, scaffolding or other structure erected solely for the purposes of exhibiting advertisement becomes dangerous or likely to become dangerous”.As the Signboard was used solely for the purpose of exhibiting advertisement, the prosecution could only proceed under Cap 132, not under the Ordinance.

18.  Relying on the judgments of Tong J in HKSAR v Joy Express Limited (No.2) ^[10] and  Bokhary J in HKSAR v Joy Express Limited ^[11], the Magistrate held that the overlapping jurisdiction of the Ordinance  and Cap 132 did not extinguish the Authority’s statutory power under the Ordinance.

Q3: Whether the issue of retrospective effect of the Ordinance arises

19.  The Magistrate considered the different versions of s.2 of the Ordinance and observed that from the first version (1955 version) to the current version (version date: 2 September 2013) of the Ordinance, the definition of “Building Works” all along includes “addition to thebuilding”.There was therefore no issue of retrospective effect of s.2 of the Ordinance even if the Signboard was erected before December 2004 (the time when the definition of “signboard” was incorporated into s.2 of the Ordinance).

Q4: Whether the prosecution was time-barred

20.  Citing the judgment of Deputy High Court Judge E Toh (as she then was) in HKSAR v Fastwin Global Investment Ltd^[12], the Magistrate held that the Authority was entitled to enforce the Order on 14 March 2015, ie the next day after the appeal to the Appeal Tribunal was disposed of on 13 March 2015.The appellant did not comply with the Order from l4 March 2015 to 1 April 2015 and continuously committed the offence during the period.The summons was laid on 22 January 2016 and was not time-barred under s.40(8) of the Ordinance.

Q5: Whether any reasonable excuse

21.  The Magistrate found that there was no reasonable excuse for the appellant’s non-compliance with the Order. 

22.  In the result the Magistrate found that the offence had been proved beyond all reasonable doubts and the appellant was convicted accordingly.

GROUNDS OF APPEAL

23.  The Applicant’s Form 101 stated the following grounds of the appeal:

“(1) No fair trial in the absence of the Defendant’s representative.

(2) For want of jurisdiction to issue any demolition order as far as the law was concerned.

(3) An administrative order void ab initio could not be validated by way of purported procedural means or otherwise. ”

24.  In a series of letters to the Judiciary, Mr Choy stated various reasons that the present appeal must be heard by the full bench of the Court of Appeal.His reasons can be summarized as follows:

(1)  V Bokhary J committed an error in HCMA 5/2000.Her error of law can only be corrected by the Court of Appeal.  A single judge of the Court of First Instance (“CFI”) has no jurisdiction in the matter.

(2)  The present appeal heard by a single judge of CFI is a violation of Articles 8, 11, 83 and 87 of the Basic Law. 

25.  I directed that the appellant’s application for the appeal to be heard by the Court of Appeal to take place on the appeal hearing scheduled on 2 March 2017. 

26.  At the commencement of the hearing before me on 2 March 2017, Mr Choy appearing for the appellant submitted a “Judicial Notice” which contained an “Amended Skeleton Submission”.As soon as I told him I had finished reading the 6-page document, Mr Choy shouted out “it’s not up to you… it’s up to my fearless submission made to you”.He then walked out of the court room despite my warning that the appeal might be heard in his absence. 

27.  Mr Kwong, Acting Senior Public Prosecutor for the respondent, applied to proceed with the hearing in the absence of any representative of the appellant.

28.  Mr Choy had the experience that when he walked out of the court room at the trial before the Magistrate, the trial would proceed in his absence resulting in a conviction.Despite my warning that the appeal might be heard in his absence, he chose to leave the court room.In my judgment, Mr Choy deliberately and voluntarily absented himself from the appeal hearing.He chose to waive his right to be present.I therefore granted the respondent’s application to proceed with the appeal hearing in the absence of the representative of the appellant.

WHETHER THE APPEAL SHOULD BE ARGUED BEFORE THE COURT OF APPEAL

29.  The entire basis of Mr Choy’s contention that a single CFI judge has no jurisdiction to deal with the present appeal is that Bokhary J erred in her decision in HCMA 5/2003.Her decision must be reversed by the Court of Appeal.

30.  The jurisdiction of the present appeal stems from the appellant exercising its right to appeal to a judge under s.113 of the Magistrates Ordinance (Cap 227) following the procedure stipulated in s.114 of Cap 227.Such appeals should normally be heard by a single CFI judge.

31.  A judge of CFI has the power to refer a magistracy appeal to the Court of Appeal under s.118(1)(d) of the Magistrates Ordinance which provides:

“the judge may reserve the appeal, or any point in the appeal for the consideration of the Court of Appeal, or may direct the appeal, or point in the appeal, to be argued before the Court of Appeal; …”.

32.  I agree with Zervos J in HKSAR v Harjani Kishore Mohanlal ^[13] that a direction for a magistracy appeal to be argued before the Court of Appeal under s.118(1)(d) of the Magistrates Ordinance should be made sparingly and in circumstances where the appeal raised an important issue of fact or lawwhich warranted the determination of the Court of Appeal.  The nature and seriousness of the issues and matters should be considered.

33.  In the present case, the primary reason Mr Choy suggested that the appeal must be heard by the Court of Appeal is that Bokhary J committed an error in her interpretation of the Ordinance, in particular, the meaning of “building works” in the Ordinance.

34.  Mr Choy reiterated his complaint in his “Judicial Notice” that the refusal to order the appeal to be heard by the Court of Appeal is a violation of Article 83 of the Basic Law.I fail to see any legal basis of the argument.

35.  I agree with the submission of the respondent that the point being taken by the appellant is ultimately a question of statutory interpretation and the decision of Bokhary J is not binding on me.I do not see any good reasons to direct the appeal to be argued before the Court of Appeal.I therefore refused to refer the case to the Court of Appeal and proceeded to consider the merits of the appeal.

MERITS OF THE APPEAL

36.  I will first deal with the Grounds of Appeal stated in the appellant’s Notice of Appeal (Form 101).

Ground 1: No fair trial

37.  A judge has a discretion to commence and/or continue with a trial in the absence of a defendant. ^[14] Mr Choy attended the proceedings of the trial but he chose to leave the court room without good reasons and leave of the Magistrate.He clearly waived his right to be present representing the appellant. The Magistrate was entirely proper to treat his departure as deliberate and voluntary act that he plainly waived his right to appear.

38.  Although the Magistrate proceeded with the trial in the absence of the appellant’s representative, he heard the case with great care to ensure that the trial was conducted fairly.He asked the prosecution to summarize all the issues raised by Mr Choy before the trial began.He reminded himself that the prosecution was put to strict proof of every element of the offence, that the burden of proof was on the prosecution and the appellant was under no duty to prove its innocence, and that no adverse inference should be drawn from the appellant remaining silent and calling no witnesses.He also reminded himself of the Berrada direction given the appellant’s clear record. 

39.  The Magistrate only came to his conclusion of the appellant’s guilt after he had carefully considered all the evidence and the submissions made by the appellant before the departure of Mr Choy.I do not see any unfairness in the way the Magistrate handled the trial. 

40.  This ground must fail.

Grounds (2) & (3): lack of jurisdiction to issue the Order and alleged “error of law” in HCMA 5/2003

41.  These two grounds can be dealt with together.It was the contention of Mr Choy that Bokhary J committed an error of law in HCMA 5/2003 when she held that: “whether an attachment of something to a building constitutes building works depends on the question of fact and degree”. 

42.  Mr Choy further argued that “the construction of signboard outside building lot over the street is ‘building works’ based on authorities declared by judges of common law jurisdictions but contrary to the systems under BL8, BL83 and BL87”.The ruling of  Bokhary J violated s.31 of the Ordinance as “case law can never override the express words of statutes”.Relying on AG v Chan Foo ^[15], he argued that “Judge has no jurisdiction to choose ordinances one over the other in his/her duty”.

43.  In HCMA 5/2003, Bokhary J had to decide whether the structures in question fell within the definition of “building works” under s.2 of the Ordinance, which included, inter alia, “addition to abuilding”. At para 13 of her judgment, her Ladyship held:

“When deciding whether the attachment of something to a building constitutes building works, it is important to consider the nature and size of the thing attached, the way that it is attached, and the effect or potential effect to the building of having the thing attached to it. It is a question of fact and degree.”

44.  Having regard to all the circumstances of the case, Bokhary J found that each of the structure in question was an addition to a building within the definition of building works given in the Ordinance.

45.  With respect, I entirely agree with the interpretation by her Ladyship in the relevant statutory provisions.Such interpretation is the plain and natural meaning of the definition in accordance with common sense and the purpose of the Ordinance stated in the long title^[16].

46.  The Magistrate, having applied the correct test laid down in HCMA 5/2003 and considered the relevant factors, concluded that the Signboard in the present case was an addition to the Building and therefore building works under the Ordinance.There is no basis for me to intervene his finding.

47.  The Signboard being “building works” under the Ordinance, the Authority would have the power to issue a demolition order under s.24(1) of the Ordinance. 

48.  While Cap 132 might also provide overlapping jurisdiction to demolish the Signboard, it did not prevent the Authority from taking enforcement action under s.24(1) of the Ordinance.The appellant’s contention that prosecution can only be brought under Cap 132 was already considered and rejected in HKSAR v Joy Express Ltd [17] by Bokhary J and in HKSAR v Joy Express Limited (No.2) ^[18] by Tong J.I agree with their judgments.

49.  The Magistrate made an additional observation that the appellant’s appeal against the Order was dismissed by the Appeal Tribunal and no judicial review was lodged by the appellant against the determination of the Appeal Tribunal.He found that it was not open to the appellant to re-challenge the validity of the Order in a criminal proceeding.That was his observation apparently in reliance of the authorities in HKSAR v Sky Wide Development Ltd ^[19], HKSAR v Incorporated Owners of No 10 Bonham Strand ^[20], and HKSAR v Tse Yee Ping ^[21]. For the sake of completeness in this line of authorities, it can be added here that in HKSAR v Liem Hung [22], the Court of Final Appeal noted that:

“It may well be that where it can be clearly shown that the Building Authority has acted ultra vires, maliciously or unreasonably, or upon a mistaken factual basis, the validity of the order can and should be raised in the magistrates’ court”.

The present case was clearly not such a case.

50.  The contention that the Authority has no jurisdiction to issue the Order must fail. 

51.  Mr Choy cited a few cases to support his argument.With respect, I fail to see how the cases can assist his case.

52.  It is not clear why Mr Choy stated at para 8 of the Amended Skeleton Submission: “SJ did acknowledge the same of invalid order in court, ESS 38553/2016 on 23/1/ 2017” and provided a letter issued by the Building Department to the Kwun Tong Magistrate dated 21 December 2016, showing that the prosecution offered no evidence against the defendant in that case (not the appellant).I agree with the respondent that the letter was irrelevant to the present appeal. 

53.  There was a general allegation of breach of various Articles of the Basic Law.I do not see any legal basis of the argument.

54.  All the grounds of appeal fail.

55.  Magistracy appeals are heard by way of re-hearing. Having considered all the evidence in the case, I am satisfied that the prosecution has proved its case beyond reasonable doubt.

CONCLUSION

56.  There is no merit at all in the appeal.The conviction is neither unsafe nor unsatisfactory.The appeal being wholly unmeritorious must be dismissed with costs, to be taxed if not agreed.