譚炳瑞 v. 上訴審裁小組(建築物條例)

HCAL 688/2024

[2024] HKCFI 1323

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 688 OF 2024

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D E C I S I O N

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A.  Introduction

1.  The Applicant in this case was also the applicant in earlier proceedings, HCAL 1067/2023, by which he sought leave to apply for judicial review so as to challenge a decision of the Appeals Tribunal (Buildings) (“BAT”) dated 25 November 2022 (“BAT Decision”). The BAT Decision dismissed the Applicant’s appeal against two Buildings Orders dated 24 September 2020.

2.  I dealt with that application on the papers, by my Decision dated 11 August 2023, [2023] HKCFI 2001. I dismissed the application for leave to apply for judicial review as it failed to disclose any reasonable arguable grounds of review with any realistic prospect of success.

3.  Now, by these proceedings commenced by Form 86 dated 30 April 2024, the Applicant seeks leave to apply for judicial review so as to challenge a further decision of the BAT dated 5 February 2024 (“BAT Costs Decision”).

4.  Having considered the materials, I am satisfied that this application can appropriately be dealt with on the papers. This is my Decision.

B.  The Targeted Decision

5.  The BAT Costs Decision deals only with the quantification of costs payable by the Applicant as the failed appellant in (one of) the earlier appeals, which were dismissed with costs ordered against him.

6.  The BAT Costs Decision refers to perusal of the information provided by both parties to the appeal (on dates in December 2023), and orders the Applicant to pay the respondent’s (i.e. BA’s) costs in the sum of $6,149.

7.  Attached to the current application is the Applicant’s own submissions referenced in the BAT Costs Decision. Also attached is further correspondence from the BAT, in response to a letter from the Applicant in which he apparently requested from the Secretary to the BAT documentary proof in relation to the costs application made by the BA. The BAT informed the Applicant that it had ceased to play a role after issuing the BAT Costs Decision, and the Applicant should therefore approach the BA with his request.

C.  Whether Merits in Intended Challenge

8.  In the Form 86, the Applicant has identified the relief sought as follows (original in Chinese):

1.  To rescind the order of the Appeal Tribunal (Buildings) [i.e. the BAT Costs Decision].

2.  Building Authority, the Buildings Department would need to provide to me the invoices and documents as requested for verification.

9.  However, neither the Form 86 nor the affirmation filed with it – which merely attaches certain documents, some as are referred to above – identifies any proposed public ground on which relief is sought.

10.  This is in breach of the mandatory requirement placed by RHC Order 53 on an applicant for leave to apply for judicial review to identify the grounds on which relief is sought. That failure is, in itself, fatal to the application. It is no part of the Court’s role to seek to identify potential public law grounds of review in relation to the decision the subject-matter of the intended challenge.

11.  In any event, I see no basis for challenge otherwise evident from the circumstances and materials shown to the Court. The Applicant’s appeals were dismissed by the BAT, and costs were ordered to be paid by him. The BAT appears to have considered the materials provided by the parties (including the arguments of the Applicant) as regards the amount of costs to be paid. The BAT Costs Decision quantifies the amount of costs payable. The Applicant’s complaint seems to be that he has not seen the verifying documents relating to the amount, and has been directed by the BAT to seek those documents from the BA (presumably without any assumption that sight of the document is in fact necessary or proper). The BAT has done so as it regards itself as functus.

12.  I see no arguable public law error arising from that sequence of events.

D.  Result

13.  In the circumstances, the Applicant’s application for leave to apply for judicial review is dismissed. I make no order as to costs.