STEADYPROFIT LTD v. APPEAL TRIBUNAL (BUILDINGS)

HCAL 2346/2025

[2026] HKCFI 4019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2346 OF 2025

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J U D G M E N T

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A. Introduction

1.  This judicial review application arises out of the issuance of a building order dated 30 November 2023 (“Order”), issued by the Building Authority (“BA”) under section 24(1) of the Building Ordinance Cap 123 (“BO”).  The Order required the Applicant to demolish or reinstate parts of the concerned property affected by alleged unauthorised building works (“UBWs”).  The Applicant appealed against the Order to the Appeal Tribunal (Buildings) (“BAT”).

2.  By the Form 86 dated 20 October 2025, the Applicant seeks to challenge the determination of the BAT dated 21 July 2025 that no good cause had been shown for holding a full hearing of the Applicant’s appeal (“Determination”).

3.  By way of relief, the Applicant seeks:

(1)  an order of certiorari quashing the Determination and/or a declaration in lieu;

(2)  an order that the BAT order the Applicant’s appeal to proceed to a full hearing; or alternatively,

(3)  an order pursuant to Order 53 rule 9(4) of the Rules of the High Court (“RHC”) to remit the BAT’s Determination to the BAT and to direct the BAT to reconsider the appeal and reach a decision in accordance with the findings of this Court.

4.  The matter was brought to a ‘rolled-up’ hearing on 22 January 2026, where the Applicant was represented by Mr Ian Chau of Counsel, and the BA was represented by Mr Tommy Cheung of Counsel and Mr Edward Chik, Senior Government Counsel.  As would be expected, the BAT did not appear and was not represented.

5.  At the end of the argument at the hearing, I reserved my decision to be handed down later.

6.  This is my Judgment.

B.  Background

B.1  The Property and the STT 975

7.  On 12 September 1996, the Applicant became the registered owner of House 7 of Beaulieu Peninsula in Tuen Mun (“Property”), which included a garage and a garden.

8.  Adjacent to the Property is an area (“STT Area”), specifically a natural slope leading to the seafront, owned by the Government.

9.  Almost 8 years later, the STT Area was leased by the Government to the Applicant under a Short Term Tenancy (“STT”) No. 975 dated 11 July 2005 (“STT 975”).  The STT 975 was for a term certain from 12 August 1997 to 31 March 2000, and thereafter quarterly until such time as the tenancy is determined.

10.  Material sections of the STT 975 are as follows:

2.  THE TENANT HEREBY AGREES WITH THE LANDLORD AS FOLLOWS:

(b)  Not to use or permit or suffer the use of the Premises or any part thereof for any purpose other than such purposes as are specified in the First Schedule hereto;

(c)  Not to erect or allow to remain on the Premises any building or structure without the consent in writing of the District Lands Officer, Tuen Mun (hereinafter referred to as “the District Lands Officer:”) first had and obtained;

(d)  Not to alter or demolish any building or structure erected on the Premises without the prior consent in writing of the District Lands Officer

28.  The Government has given no warranty, express or implied as to the suitability, physical condition or state or safety of any structure or building or structures or buildings existing on the Premises or any part or parts thereof for the use hereby permitted, whether in accordance with the terms and conditions in the tenancy or otherwise.  The grant of the tenancy shall not be construed so as to condone any structures existing on the Premises not complying with provisions of the Buildings Ordinance, any regulations made thereunder and any amending legislation.  Action appropriate under the said Ordinance or any other enactment may be taken at any time.

29  (e)  Notwithstanding the grant of the tenancy, the Government reserves the right to take appropriate action under the Buildings Ordinance, any regulations made thereunder and any amending legislation in respect of any structure or building erected on the Premises.

11.  The STT 975 was followed by renewals by way of renewal letters from the District Lands Officer, Tuen Mun (“DLO”) dated 9 May 2012 (“2012 DLO Letter”), 22 May 2022, and 24 December 2024.

B.2  The Order

12.  In around April 2011, the Buildings Department (“BD”) announced its new enforcement policy against UBWs, which adopted a wider scope for enforcement action “so as to remove UBWs in a more comprehensive and systematic manner”.  The previous ten-year programme of UBW removal focused on those constituting a “higher risk to public safety or an obvious or imminent danger to life or property”, whereas the new enforcement policy, effective 1 April 2011, extended coverage of actionable UBWs to include UBWs on rooftops and podiums as well as those in yards and lanes of buildings, irrespective of their risk to public safety or whether they are newly constructed.  This included inter alia (a) items constituting obvious hazard or imminent danger to life or property, (b) new items (excluding statutorily exempted building works under the BO) irrespective of the date of completion of the building where such items have been carried out, (c) items on the exterior of buildings, including those on rooftops and podiums, in yards and lanes and projecting from external walls, and (d) items in or on buildings constituting a serious health or environmental nuisance.

13.  In 2023, the Property was selected as one of the target buildings nominated by the BD for Large Scale Operation, namely Comprehensive Unauthorised Building Works Clearance 2023.

14.  In October 2023, the Existing Buildings Division of the BD carried out inspections of the Property and the STT Area.  A total of 16 UBWs were recorded, including UBW 16 which was in relation to structures erected on and over the STT Area (“STT Structures”), described in the Inspection Photographic Record Sheet dated 15 November 2023 as structures erected beyond the turfing slope area adjoining the LG/F garden and the STT Area, with several levels of structures leading from LG/F garden connecting with stairs to the sea.

15.  On 30 November 2023, the BA issued the Order requiring the Applicant to demolish or reinstate parts of the building affected by the UBWs (all 16 of them).  The STT Structures were specified under §1(b)(xvi) of the Order, and were referred to as “structures erected on and over [the STT Area]”.  The STT Structures appear to refer to railings, a balustrade and platforms with a staircase leading to the sea in front of the Property.  The Applicant was required to commence the works within 90 days and complete such works within 180 days of the date of the Order, all to the satisfaction of the BA.

16.  By letter dated 28 February 2024, the DLO reminded the Applicant of the Order and asked the Applicant to submit a remedial proposal for removal and remedial works of the STT Structures. However, by that date, the Applicant had already appealed against the Order (see below).

17.  There was and is a significant factual dispute as to the erection of the STT Structures.  The Applicant alleges that the STT Structures existed on the STT Area before the Applicant applied for the STT in around 1997-8, and later granted.  The BA’s stance that this is a bare assertion, and the STT Structures did not form part of the STT Area prior to it being subject to the STT 975.  I will return to this point later as it forms a significant part of the Applicant’s challenge.

B.3  The Applicant’s Appeal to the BAT

18.  By Notice of Appeal dated 19 December 2023, the Applicant appealed to the BAT against the Order.

19.  On 14 February 2025, a preliminary hearing was held before the BAT (“Preliminary Hearing”), at which the Applicant was required to show good cause to proceed to a full hearing.

20.  At the Preliminary Hearing, the Applicant submitted, amongst other things, that:

(1)  The STT Structures were exempt from the provisions of the BO, including the UBW regime, and there was a legitimate expectation precluding enforcement against the STT Structures.

(2)  In relation to all of the alleged UBWs, the Order was flawed, including by reason of legitimate expectation, irrelevant considerations and unreasonableness.

B.4  The Determination

21.  On 21 July 2025, the BAT rendered the Determination, whereby the BAT rejected the Applicant’s arguments and ruled there was no good cause for holding a hearing, thus dismissing the appeal.

22.  These proceedings were commenced on 20 October 2025.  However, it is important to note that the intended judicial review challenge has focused on UBW 16, namely the STT Structures, and that part of the Determination dealing with the appeal in that respect.

23.  It is, therefore, apt to set out the relevant part of the Determination:

60.  The Appellant's contention is summarized as follows:

60.1  The basis of complaint was that the STT. Structures (i.e. UBW^-16) had allegedly been in existence in the STE Area since about 1997 when the Appellant applied for the STT.  At the Hearing, upon enquiry from the Tribunal, the Appellant submitted that this assertion can be accepted “at face value” and “is good enough to proceed with a full hearing”, and that there is “no good reason to question the credibility” of the Appellant.  The Appellant also submitted that the BA could rebut this statement if they were false.

60.2  Then, the Appellant says that the STT Structures were exempt from BO under s.41(a) of BO, as they were “buildings belonging to the Government”.  The Appellant argued that the Government owned the buildings, and so the Appellant could not demolish them.  The Appellant relied on cl.2(d) of the STT (“STT Clause 2(d)”), which provides that the tenant of STT (i.e. the Appellant) agrees “not to alter or demolish any building or structure erected on the Premises without the prior consent in writing of the District Lands Officer”.

60.3  Alternatively, the Appellant says that there was. legitimate expectation by the grant of the STT that there would not be enforcement by way of the Order, as the Government implied by conduct that the Appellant would not be obliged to remove the STT Structures.

61.  However the Appellant’s contentions are untenable.

62.  Firstly, the Appellant’s alleged basis is flawed, and contrary to the principles articulated in Fortune Friend Ltd, in particular §14(4)-(7).  The Appellant adduced no evidence that the STT Structures had been in existence since 1997.  These are bare assertions, and not substantiated by evidence.  As to the Appellant’s proposal that their assertions can be accepted “atface value”,it is an impermissible shift of evidential burden to the BA to disprove the Appellant’s unsupported assertion.

63.  Secondly, even assuming such structures did exist in the STT Area before grant of the STT, the Appellant’s construction of s.41(a) of BO, that they “belong” to the Government, is flawed.

63.1  The modern approach to statutory interpretation is to adopt a purposive interpretation, and words are given their natural and ordinary meaning unless the context or purpose points to a different meaning.  Town Planning Board v Town Planning Appeal Board (2017) 20 HKCFAR 196 at §75.

63.2  The BO’s purpose is expressed as: “To provide for the planning, design and construction of buildings and associated works; to make provision for the rendering safe of dangerous buildings andland; to make provision for regular inspections ofbuildings and the associated repairs to prevent the buildings from becoming unsafe, and to make provisionfor matters connected therewith.”

63.3  In the 2^nd edition of the Oxford English Dictionary, “belong” is defined as “To be the property or rightfulpossession of …”.

63.4  Putting aside the fact that the Appellant adduced no evidence on the age of UBW-16, the argument that under. s.41(a) of BO UBW-16 belonged to the Government, and were hence exempt from the provisions of BO, is clearly non-sensical.  On a purposive construction, “buildings belonging to the Government” in s.41(a) of BO clearly refers to those structures legally owned by the Government.  To adopt the Appellant’s interpretation would mean that unlawful building structures on government land would become property of or be in rightful possession of the Government, even if the Government never owned, built nor approved the same.  This practically attributes to the Government the ownership of all such unlawful structures.  Not only does this interpretation do violence to the ordinary meaning of “belonging”, this also contradicts and defeats the express purpose of the BO, namely to provide for the regulation of such unlawful building works.

64.  Thirdly, the Appellant’s interpretation is also expressly contradicted by the terms of the STT 975 Agreement, namely the Special Conditions in the 2^nd Schedule (“Special Conditions”) and the DLO’s letter to the Appellant dated 9.5.2012 continuing the STT (“2012 DLO Letter”).

64.1  Clause 28 and clause 29(e) of the Special Conditions provided that the Government (i) gave no warranties for any structures in the STT Area, and (ii) reserved the right to take action against any unlawful building works:

“28. The Government has given no warranty, express or impliedas to the suitability, physical condition or state or safety of any structure or building or structures or buildings existing on thePremises or any part or parts thereof for the use herebypermitted, whether in accordance with the terms and conditions in the tenancy or otherwise. The grant of the tenancyshall not be construed so as to condone any structures existing on the Premises not complying with provisions oftheBuildings Ordinance,any regulations made thereunder and any amendinglegislation. Action appropriate under the said Ordinance or anyother enactment may be taken at any time.”

“29. (e) Notwithstanding the grant of the tenancy, the Government reserves the right to take appropriate action under the Buildings Ordinance, any regulations made thereunder and any amending legislation in respect of any structure or building erected on the Premises.”

64.2  The 4^th to 2^ndlast paragraphs of the 2012 DLO Letter also stated that the continuation of the STT is no waiver of any existing of future breach or non-observance/ non-performance of terms by the Appellant.

“I also stress that this letter and the demand or acceptance of the revisedrent shall not constitute any waiver by the Government of any breach by you of any of the terms and conditions of the Tenancy Agreement which may exist at the date hereof or which may hereafter occur or otherwise prejudice the Government’s rights and remedies in respect ofany such breach.

…

Please note that we. have not inspected House No. 7 held under New Grant No. 2254 of Lot No. 758 in D.D. 379 for the purpose of this rent review exercise of STT No. 975 and nothing in this letter or the said STT No. 975 shall be construed as any consent, approval, waiver or acquiescence on the part of the Director of Lands or the Government of or with any breach or non-observance or non-performance by you of any terms or conditions of the lease conditions in relation to Lot No. 758 in D.D. 379 or of any Ordinances or regulations.

I would like to stress that the issue of the said STT No. 975 on 11 July 2005 to you is without prejudice to all or any rights of the Government and the Director of Lands, whether under the terms and conditions imposed in Lot No. 758 in D.D. 379 or in the said STT No. 975 or under any Ordinances or regulations or otherwise in respect of any breach of non-observance or non-performance by you of any of the said terms and conditions which may exist at the date hereof or which may hereafter occur, and the rights of the Government and the Director of Lands as aforesaid are hereby expressly reserved.”

64.3  From the above, it is palpably clear that the terms of the STT, and as again made clear in the continuation by the 2012 DLO Letter, expressly preserve the Government’s power, to enforce against any breach or non-observance of any ordinances or regulations.

65.  Fourthly, at the Hearing, in response to the above terms, the Appellant argued that (i) STT Clause 2(d) should be construed “purposively” such that the Appellant would be prohibited from demolishing or altering pre-existing structures in STT Area, and (ii) those terms in the Special Conditions and the 2012 DLO Letter should also be construed “purposively”, so that they only apply to those structures built by the Appellant.  These submissions are untenable:

65.1  It is not disputed that Special Conditions apply to the STT Area and  the structures therein.  Clauses 2(n) of the STT 975 Agreement requires the Appellant (as tenant) to observe the Special Conditions.  Clause 4(c) of the STT 975 Agreement repeats that the STT is subject to the Special Conditions.

65.2  From the above quoted provisions in the STT 975 Agreement and the 2012 DLO Letter, they were clearly drafted with the provisions of BO in mind, and to preserve the Government’s power of  enforcement over such UBWs.

65.3  There is nothing to support why the terms of the STT 975 Agreement should be read differently, such that these powers ought not to be exercised for (i) pre-existing structures and/or (ii) UBWs on land subject to short term tenancy.  In any event, BO provisions do not treat such structures differently from any other UBWs.

65.4  The Appellant’s suggested interpretation of the STT 975 Agreement (to prevent the Appellant from demolishing these structures) is without legitimate basis and wholly artificial, and is contrary to the wording of the quoted Special Conditions or the 2012 DLO Letter.

65.5  It bears repeating that the Appellant adduced no evidence to show that these were pre-existing structures and/or that it did not build UBW-16 (or indeed any of the other UBWs).

66.  Fifthly, given the above quoted provisions in the STT 975 Agreement and the 2012 DLO Letter both preserved the Government’s power to enforce against any non-compliant building structures, the Government has not, by any conduct or otherwise, created any legitimate expectation on the Appellant that no such action would be taken.  The Appellant’s case fails in this regard.

67.  The Tribunal finds that the Appellant is unable to show (i) the pre-existing state of UBW-16; (ii) that UBW-16 belonged to the Government and s.41(a) BO should apply; (iii) alternatively, the Government created any legitimate expectation in granting the STT to the Appellant.  The Appellant’s Ground D-I and Ground D-2 fail.

24.  As will be seen, the argument in this application replicates in large part that advanced in the BAT, and forms the foundation for the challenge to the Determination.

C.  Relevant Statutory Provisions

25.  The purpose of the BO, as expressed in its long title, is to “provide for the planning, design and construction of buildings and associated works; to make provision for the rendering safe or dangerous buildings and land; to make provision for regular inspections of buildings and the associated repairs to prevent the buildings from becoming unsafe; and to make provision for matters connected therewith”.

26.  Part of the argument in this case arises from the exemption provisions found in section 41 of the BO, the material parts of which are as follows:

41.  Exemptions

(1)  The following shall be exempt from the provisions of this Ordinance-

(a)  buildings belonging to the Government.

(ba)  any land vested in the Housing Authority or in any person on behalf of the Hong Kong Garrison, and any unleased land within the meaning of the Land (Miscellaneous Provisions) Ordinance (Cap. 28) other than such unleased land in respect of which a person is, under the terms of a Government lease, under an obligation to maintain.

27.  By reference to the exemption provided for in section 41(1)(ba), it can be noted that under section 2 of the Land (Miscellaneous Provisions) Ordinance Cap 28, “unleased land” simply refers to land which is not leased land.  It is also appropriate to recognise here that the argument based upon the section 41(1)(ba) exemption was not advanced before the BAT (a point to which I shall return later).

28.  As stated, the Order in this case was issued pursuant to section 24(1) of the BO.  It is well-settled that the wording of that section gives the BA a discretion as to whether or not to issue a building order.  But the discretion is limited or circumscribed, in the sense that it cannot be exercised to defeat the purpose of the BO.

29.  There is no dispute that the Order was appealable under the BO, and that the time for appealing was 21 days.  In more detail as to appeals, the provisions of the BO material for present purposes are as follows:

43.  Interpretation

(1)  In this Part—

Appeal Tribunal (上訴審裁小組) in relation to an appeal means the tribunal constituted under section 48 to hear and determine that appeal;

Chairman (主席) in relation to an Appeal Tribunal means the person appointed as its chairman under section 48(1);

44.  Appeals from decisions of Building Authority

(1)  A person aggrieved by any decision made by the Building Authority in the exercise of a discretion conferred on him under this Ordinance may, except where this Ordinance provides otherwise, appeal from that decision in accordance with this Part and regulations made under section 38(1B).

(2)  If—

(a)  a decision appealed from under subsection (1) requires the carrying out of works; and

(b)  a notice of appeal as regards that decision is given under section 47,

subject to subsection (3), with effect from the day the notice is so given, the Building Authority shall neither enforce nor permit the enforcement of such decision, until the appeal is disposed of or unless it is withdrawn or abandoned.

(3)  The Building Authority may enforce a decision referred to in subsection (2) or permit its enforcement where he is of the opinion that an emergency exists and that having regard to that emergency such enforcement is necessary and serves a notice on the appellant stating that due to an emergency the enforcement of the decision and the carrying out of works or other action is necessary.

(4)  The decision of the Building Authority that an emergency exists for the purposes of subsection (3) shall not be subject to an appeal under section 44.

49.  Preliminary hearing

(1)  The Appeal Tribunal may, in any case where it considers it appropriate to do so, hold a preliminary hearing to determine whether good cause has been shown for holding a full hearing.

(2)  If the Appeal Tribunal determines that good cause has not been shown for holding a full hearing it shall make an order dismissing the appeal but shall otherwise hold a full hearing.

50.  Determination of appeal

(1)  The following shall apply in relation to the hearing and determination of an appeal or a preliminary hearing held under section 49—

(a)  every question shall be determined by the opinion of the majority of the members of the Appeal Tribunal;

(b)  where there is an equality of votes, the Chairman shall have a casting vote;

(c)  the Appeal Tribunal may—

(i)  receive and consider any oral, documentary or other evidence, (including any written statement), whether on oath, affirmation or otherwise, and whether or not it would be admissible in evidence in proceedings in a court;

(ii)  by summons issued in the prescribed manner, require any person to attend before it at any hearing to give evidence or to produce any document;

(iii)  administer oaths or affirmations;

(iv)  examine on oath, affirmation or otherwise any person attending before it and require such person to answer any question put by or with the consent of the Tribunal.

(2)  In determining an appeal, the Appeal Tribunal may make an order confirming, varying or reversing the decision that is appealed against or substituting therefor such other decision or make such other order as it thinks fit.

30.  I have previously set out the applicable principles for a preliminary hearing before the BAT in numerous cases, but it may be useful to summarise them once more:

(1)  Section 49 of the BO gives the power to the BAT to dismiss an appeal at a preliminary hearing when no good cause has been shown for holding a full hearing.

(2)  The preliminary hearing is to determine if the appeal should be weeded out at an early stage.  It is not a process to see if the BA can produce sufficient evidence to justify the issuance of the relevant building orders in the first place.

(3)  The burden rests squarely on the appellant to show to the BAT that there is good cause for holding a full hearing.

(4)  It is a matter for the appellant to place such evidential materials before the BAT as he thinks is sufficient to satisfy the burden of showing good cause for holding a full hearing.

(5)  Generally speaking, if an appellant raises a substantial dispute of fact, the resolution of which is required for the purpose of disposing of his appeal, it is likely good cause has been shown for holding a full hearing.

(6)  However, if the disputed fact is not material to the outcome of the appeal, the BAT is under no duty to resolve that dispute, and may dismiss the appeal forthwith.

(7)  The preliminary hearing is not a striking out and the BAT is not bound to take the factual assertions of the Applicant at its highest, or at face value.  Nor is the BAT bound to read the evidence in a way which is most favorable to the appellant’s case.  Rather, the BAT is entitled to approach the threshold question with a degree of robust common sense.

(8)  The BAT’s members are chosen on account of their relevant specialist knowledge and skills, and are entitled to consider evidence broadly, pragmatically and with common sense.

(9)  It would not normally be appropriate for the BAT to resolve conflicts of expert evidence at a preliminary hearing, unless the materials before the BAT justify a conclusion being reached on the issue at a preliminary hearing.

(10)  The BAT may refuse to hold a full hearing where it is apparent that an ostensible dispute of fact is without substance, or where the appeal is wholly lacking in merit or is frivolous.

D.  The Intended Grounds of Review

31.  The Applicant put forward three intended grounds of review:

(1)  Ground 1: The BAT committed an error of law by failing to construe exemptions in section 41(1) of the BO to include the STT Structures.

(2)  Ground 2: The BAT failed to take into account relevant considerations as to the factual findings regarding the STT Structures.

(3)  Ground 3: The BAT erred in law and fact in finding that the Government had not created any legitimate expectation.

32.  As summarised by Mr Chau, these grounds relate to express exemptions on section 41 of the BO, as well as related legitimate expectation, and their application to fixtures which were extant on Government land, before it was disposed of as garden extensions by way of STT 975.

33.  For his part, Mr Cheung submitted that whilst two of the intended grounds are structured as errors of law and fact, fundamentally the Applicant is disagreeing with the BAT’s rejection of its arguments advanced before the BAT.  Further, there was no error of law in ruling that the Government had not, by any conduct or otherwise, created any legitimate expectation for the Applicant that no action to enforce against the STT Structures would be taken.

34.  Though there is some considerable overlap amongst them, I can deal with the intended grounds each in turn.

E.  Ground 1: Error of Law in Construing Exemptions

35.  Ground 1 concerns the interpretation of section 41 of the BO.  The Applicant’s case is twofold, being (1) the STT Structures are fixtures which belong to the Government (as owner of the STT Area), and therefore (2) the Order was issued wrongly.

36.  Interwoven was the Applicant’s contention in the Preliminary Hearing (and repeated in this leave application) that the STT Structures had been in existence in the STT Area since 1997, when the Applicant first applied for the STT.  As such, the Applicant generally submits that the STT Structures were exempt from the BO by virtue of section 41(a), i.e. “buildings belonging to the Government”.  Put shortly, Mr Chau submitted that if the STT Structures already existed in 1997, they existed on “unreleased land” and were therefore within the exemptions; and they could not have become UBWs merely upon the grant of the STT 975.

37.  It is convenient to repeat that at §§62 and 63.4 of the Determination, the BAT found that:

62.  Firstly, the Appellant’s alleged basis is flawed, and contrary to the principles articulated in Fortune Friend Ltd, in particular §14(4)-(7).  The Appellant adduced no evidence that the STT Structures had been in existence since 1997.  These are bare assertions, and not substantiated by evidence.  As to the Appellant’s proposal that their assertions can be accepted “at face value”, it is an impermissible shift of evidential burden to the BA to disprove the Appellant’s unsupported assertion.

63.4  Putting aside the fact that the Appellant adduced no evidence on the age of UBW-16 [i.e. the STT Structures], the argument that under s.41(a) of BO UBW-16 belonged to the Government, and were hence exempt from the provisions of BO, is clearly non-sensical.  On a purposive construction, “buildings belonging to the Government” in s.41(a) of BO clearly refers to those structures legally owned by the Government.  To adopt the Appellant’s interpretation would mean that unlawful building structures on government land would become property of or be in rightful possession of the Government, even if the Government never owned, built nor approved the same.  This practically attributes to the Government the ownership of all such unlawful structures.  Not only does this interpretation do violence to the ordinary meaning of “belonging”, this also contradicts and defeats the express purpose of the BO, namely to provide for the regulation of such unlawful building works.”

38.  The Applicant’s challenge focuses on the part that “buildings belonging to the Government” referred to structures “legally owned” by the Government, and that the Applicant’s interpretation of section 41(a) would inevitably lead to a conclusion that unlawful building structures on government land would become property or be in the rightful possession of the Government, even if the Government never owned, built nor approved of such building structures.

39.  Mr Chau’s submissions might be summarised as follows:

(1)  Exemption from the provisions of the BO would have the effect of precluding any demolition or reinstatement order.

(2)  Such an exemption includes that provided for in section 41(1)(a) of the BO, namely in relation to “buildings belonging to the Government”.

(3)  The definition of “building” in section 2 of the BO is very wide, and would cover the STT Structures.

(4)  A fixture becomes part of the land, and whether something is a fixture depends upon the degree and object or purpose of annexation.

(5)  The STT Structures – platforms with stairs and accompanying railings/balustrade – are fixtures, being a permanent improvement to the land concerned.

(6)  As fixtures, they form part of the land, and it does not matter whether they were erected by a prior tenant or other person.

(7)  The word “belonging” should be given its ordinary natural meaning.

(8)  The natural interpretation of “buildings belonging to the Government” is simply buildings owned by the Government.

(9)  That would include the STT Structures, being fixtures on the STT Area, so that they belong to the Government as the owner of the STT Area.

(10)  The BAT’s consideration as to whether the STT Structures were “legally owned” by the Government would defeat the express purpose of the BO, to provide for the regulation of unlawful building works.

(11)  The BAT’s interpretation was also circular and inconsistent with the fundamental concepts of property law.

(12)  Reliance on the terms of the STT 975 and the 2012 DLO Letter was misplaced, not least because subsequent documents could not be relevant to the pre-existing section 41(1) of the BO.

(13)  In any event, neither document contradicted the Applicant’s interpretation of that section.

40.  Mr Chau also made submissions by reference to section 41(1)(ba) of the BO, which he said would be applicable even if there were doubts as to whether the STT Structures belong to the Government.  That section provides for the exemption relating to any “unleased land”.  Mr Chau submitted that there can be no question that before the grant of the STT to the applicant by the STT 975, the land comprising the STT Area with the STT Structures on it was “unleased land”, so exempt from the BO, and they were not UBWs.  The grant of the STT in 2005 (albeit backdated to 1997) could not somehow transform into UBWs things which were previously not UBWs and/or exempt.

41.  Mr Chau acknowledged that this argument had not been specifically raised before the BAT, but submitted that it should nevertheless be considered where (1) the exemption was part and parcel of the same section 41 exemptions to be construed as a whole, (2) no factual evidence necessary to consider the point is missing, (3) reference had been made at the BAT to the description of the Government as owner of the unleased land, (4) similar issues were already before the BAT, not least in relation to legitimate expectation.

42.  I accept that at face value these submissions have some apparent force.

43.  But, on the other side of the argument, I note Mr Cheung’s submission that the question of whether or not an item is a fixture must be supported and proved by evidence, and that it does not follow that an item of a large size and/or placed at a site for a long period of time will necessarily become a fixture.  Indeed, the classification of something as either a fixture or a chattel may depend objectively on the degree of annexation and the object or purpose of annexation.

44.  There is also some force to his submission that there must be some degree of intention or knowledge on the part of the receiving party before property rights can transfer.  In particular, Mr Cheung stressed the danger of Mr Chau’s interpretation, namely that dangerous structures built on Government land become Government property if there is sufficient annexation.  That is all the more so where the Government appears to have been unaware of the STT Structures.  He submitted that this goes against the very purpose of the BO.

45.  Mr Cheung further submitted that, under §29(e) of the STT 975 the Government reserves the right to “take appropriate action” under the BO in respect of any structure or building erected on the STT Area.  Therefore, he said, as a matter of law, the BA is statutorily required to take action against unlawful structures notwithstanding the Government’s private capacity as landlord in the STT 975. Even if the STT Structures were in fact fixtures upon the STT Area, that would not by itself preclude the BA from issuing the Order to remove them.

46.  As to the Applicant’s new point on section 41(1)(ba), Mr Cheung submitted that the point should never be entertained but would be rejected on its merits in any event.  It would be objectionable to deal with a new point on judicial review where the Court cannot decide on the preliminary point afresh when it was neither raised before nor decided by the BAT.  No criticism of the BAT for making an error of law could possibly succeed if the argument on law was not presented to begin with.  The point does require evidential foundation to establish the factual status and circumstances of the STT Structures at any relevant or material times.

47.  However, ultimately it seems to me that the key point was that all of the argument depended upon the factual assertion that the STT Structures were already present on the STT Area prior to 1997.  However, as noted by the BAT at §63.4 of the Determination, the Applicant adduced no evidence on the age of the STT Structures.  With respect, acceptance of the Applicant’s contentions at face value in the absence of any bona fide evidence would be contrary to the procedural and evidentiary rules of the preliminary hearing process.  As I have set out above, the burden was on the Applicant to prove any matters it wished in support of its case.  For similar points, or the application of the points, reference can also be made to Magic Key Ltd v Appeal Tribunal (Buildings) [2020] HKCFI 1716, and Lo Yin Ming v Appeal Tribunal (Buildings) [2011] 3 HKLRD 573.

48.  In the First Schedule of the STT 975, the particulars of the premises are simply given as “all that piece of ground situate at Beaulieu Peninsula, Tuen Mun, New Territories, Hong Kong comprising an area of 113 square metres or thereabouts…”.  There is no mention of or reference to the STT Structures in any way.  The Applicant did not identify or demonstrate by evidence the condition of the STT Structures in the earlier periods of time.

49.  The photographs taken at the time of inspections dated 3 and 11 October 2023 similarly do not assist.  Simply because the STT Structures were present in 2023 does not mean one can infer the existence of those STT Structures as far back as 1997.

50.  Again, the burden rested upon the Applicant to adduce sufficient evidence as regards its claims that the STT Structures are fixtures upon the STT Area and predate the STT.  I do not think Mr Chau is correct when he suggested that the existence and extent of structures well over 20 years ago is a matter of factual dispute which must merit a full hearing, potentially with expert evidence.  The Applicant adduced no such evidence, and does not appear to have identified the nature of what such evidence might comprise.  In any event, the weight to be given to the evidence, including actual or potential expert opinion evidence, was a matter for the BAT.  The Court exercising its judicial review jurisdiction is unlikely to interfere unless they can be demonstrated either irrationality or a clear area of law.

51.  On the materials advanced, the BAT found that the Applicant’s claims were unsubstantiated, because they amounted to bare assertions, which should not be accepted at face value.  That was the first and determinative point.  It is not a finding with which the Court exercising its judicial review jurisdiction will interfere.

52.  In these circumstances, it cannot reasonably be argued that the BAT misconstrued section 41 of the BO as regards to the STT Structures.

53.  Ground 1 is not reasonably arguable with any realistic prospect of success.  Alternatively, even if there is a proper basis for the grant of leave, I would refuse Ground 1 on substantive hearing.

F.  Ground 2: Failure on Factual Findings

54.  Mr Chau submitted that the BAT failed to take into account, or failed to take into account sufficiently, the following circumstantial evidence:

(1)  The Government would not entertain an application for a STT unless the area was occupied or formed, and the relevant STT in the Applicant’s case was granted under a “policy and practice” for granting a garden land extension for temporary use of an adjoining residential house where the land would otherwise be of no beneficial use.

(2)  A new owner would have to make an application for a new STT.  The Applicant became the new owner of the Property in 1997, subsequent to which it applied for the STT.  The garden/seafront area must have been formed before the Applicant applied for the STT.

(3)  The STT Area was allegedly prone to third party interference, as evidenced in the letter from the Applicant’s solicitors to the District Lands Officer (“DLO”) dated 6 April 2016, whereby the Applicant complained that the owner of the neighbouring House 6 had trespassed on the STT Area, reclaimed the foreshore and built concrete platforms and walls.

55.  It was the BAT’s opinion that the Applicant’s allegation with regard to the age and/or existence of the STT Structures was unsubstantiated.  In coming to that conclusion, the BAT must have taken into account the circumstantial evidence above, but found it unconvincing and/or simply untrue.

56.  Moreover, the argument that the Applicant’s claims could be rebutted by the BA because it had full access to aerial photographs does not assist.  Again, the burden rested squarely on the Applicant to adduce sufficient evidence in support of its claims, which the Applicant was more than likely able to produce.  At the time of the Preliminary Hearing, the Applicant had already been the owner of the Property for over 27 years.  The STT Area would have been in direct view of the Property every single day.  The Applicant could have asked the previous owner of the Property for pictures or other evidence of the STT Structures that would demonstrate its pre-existence.  Alternatively, the Applicant could have asked other neighbours for similar evidence.  As a matter of fact, no evidence was produced by the Applicant to support its claims.

57.  It is settled that what is and is not a relevant consideration for a public decision-maker to have in mind and the weight with which the factor is afforded is, absent a statutory code of compulsory considerations, for the decision-maker, not the Court, to decide.  Simply because the BAT did not explicitly state every factor it had considered does not mean it did not consider those factors.  Having considered the arguments put forward by the Applicant, the BAT decided its factual case was not established.

58.  As can be seen, Ground 2 in effect is repetitive of some issues that within Ground 1.  The points made are not improved by repetition.

59.  Ground 2 is not reasonably arguable with any realistic prospect of success.  Alternatively, even if there is a proper basis for the grant of leave, I would refuse Ground 2 on substantive hearing.

G.  Ground 3: Legitimate Expectation

60.  Certain situations can give rise to a legitimate expectation, in which event failing to honour the expectation may, in particular circumstances, result in such unfairness to individuals so as to amount to an abuse of power justifying intervention by the Court.

61.  The expectation must be reasonable, that is, reasonable in the light of the official conduct which is said to have given rise to the expectation.  It must also be lawful.

62.  Mr Chau submitted that the legitimate expectation here is akin to an implied contractual representation.  Mr Chau went further to state that the leasing and/or renewal of the STT amounted to an implied representation by conduct that the Applicant would not be obliged to demolish, remove or alter the STT Structures.  Mr Chau again sought to rely on the section 41 exemptions by reason of the STT Structures allegedly pre-dating the STT and therefore being either (1) a building “belonging to the Government”, and/or (2) part of the “unleased land”.

63.  Again, Ground 3 is largely premised on the assumption that the STT Structures predated the STT 975 and were therefore already part of the STT Area, and it is for that reason that they fell under the section 41 exemptions of either “belonging to the Government” or being “unleased land”.  But – in a way with which there is no reasonably arguable basis for interference (see above) – the BAT found that the Applicant simply had not adduced sufficient evidence to support this claim.

64.  There may be some weight to the fact that the STT was renewed twice in 2012 and 2022 respectively.  In the pictures attached to the letter from Wong, Hui & Co to the Environmental Protection Department dated 27 August 2014, the balustrade, railing and staircase (i.e. the STT Structures) in the STT Area can be seen, supporting an inference that the STT Structures were at least already present at the time of the 2022 STT renewal.  But 2014 was after the 2012 renewal, and a long time after 1997, or even 2005 – or any sameness and continuity throughout that period.  As such, the foundation for Ground 3 falls away.

65.  In any event, such an expectation that the Applicant would be permitted to retain and use the STT Structures, if any, is neither lawful nor reasonable.  I accept Mr Cheung’s submissions that (1) the BA has no power of dispensation from the statutory requirements under section 14 of the BO that no building works shall be commenced or carried out without first having obtained the requisite approval and consent in writing from the BA, and (2) the BA’s policy regarding unauthorised building works is one of “enforcement” rather than “tolerance”, and the fact that the BA has not taken action against an unauthorised structure for a long period of time does not mean that no action can or will be taken against it: see Magic Key at §38, which emphasises that no relevant representation or promise made by the BA would support an inference of the alleged legitimate expectation.

66.  Mr Chau submitted that the current situation is different from Magic Key, in that the structure started out as Government property and would have been exempt from the BO and the STT 975 itself prima facie prohibits demolition.  As such, he said, it would be reasonable for the Applicant to expect non-enforcement.

67.  But – in addition to the missing evidence – under §29(e) of the STT 975 the Government reserves the right to “take appropriate action” under the BO.  Indeed, the position of the BA in relation to enforcement action against unauthorised structures is different from that of the DLO against breaches of the terms of a Government lease.  But by Mr Cheung, the Government has let land via the STT in its private capacity of landlord, but has reserve the right to take public action in its capacity as the BA.  Further, the 2012 DLO Letter provides that acceptance of the tenancy renewal “shall not constitute any waiver by the Government of any breach … of any of the terms and conditions” of the STT 975.  These provisions go explicitly against any alleged legitimate expectation of non-enforcement.

68.  Ground 3 is not reasonably arguable with any realistic prospect of success.  Alternatively, even if there is a proper basis for the grant of leave, I would refuse Ground 3 on substantive hearing.

H.  Procedural Dispute

69.  There was a further procedural dispute between the parties, namely as to whether all issues raised at the Preliminary Hearing could proceed to a full hearing so long as good cause for a full hearing is found for at least one of those issues.

70.  The BO is admittedly vague in this regard.  Section 49(2) merely states that the BAT shall make an order dismissing the appeal if good cause has not been shown for holding a full hearing, but “shall otherwise hold a full hearing”.  The BO does not explain what happens when multiple grounds of appeal are raised and/or some (but not all) of those grounds show good cause.

71.  Mr Chau argued in favour of an “all or nothing” approach, whereby either the appeal is dismissed upon a finding that good cause has not been shown, or the matter as a whole may proceed to a full hearing where good cause is successfully shown for at least one of the reasons for appeal, even if the other reasons were unsuccessful at the preliminary hearing stage.  Mr Chau likened the preliminary hearing procedure to a “species of its own” where by default leave to appeal is not required.  Mr Chau submitted that allowing for separation of the issues at the preliminary stage may lead to the BA creating multiple full hearings and (where successful) multiple demolition orders which may conceivably deal with the same property.  However, I do not accept that submission.

72.  Indeed, the effect of the “all or nothing” approach would essentially be that an appellant may have a “second bite” for all issues raised, even if the BAT considers that good cause has not been shown for each and every one of those issues.

73.  I find Mr Cheung’s “purposive” interpretation to be more persuasive.  I note section 50(1)(a), which provides that “every question” shall be determined by a majority vote of the BAT, applicable equally to both full hearings and preliminary hearings.  As for section 50(2), Mr Cheung submitted that the BAT making such other order “as it thinks fit” also extends to broader case management powers such as severance of issues.

74.  In my view, section 49 of the BO is intended to serve as a true filter to allow matters which are worthy of a full hearing to proceed to a full hearing, whilst putting a stop at the preliminary stage to matters which do not warrant a full hearing.  It seems to me to be inherently problematic if a BAT were, for example, to find one out of ten challenges of sufficient merit to warrant a full hearing, but then be required to conduct a full hearing also in relation to nine other challenges which, if dealt with separately, would not have led to a full hearing because no good reason for such a hearing has been shown.

75.  This is analogous for example to an application for leave to appeal to the Court of Appeal, whereby the substantive appeal deals only with grounds for which leave was granted, and other grounds need not be addressed.  With respect, the “second bite” approach seems obviously contrary to basic principles of reasonable expedition and efficiency – and cost effectiveness – which should underly any adjudicatory procedure.

76.  I acknowledge that there may be cases where a clear severance of points may not be possible on an appeal to the BAT.  But where, as here, the intended challenge was to a large number of UBWs, it would make little sense to permit the challenge to continue as regards all UBWs at a full hearing, if only one intended challenged UBW was thought to merit a full hearing (and the others not).

I.  Result

77.  The Applicant’s application largely presupposes the existence of the STT Structures in 1997 and/or before the STT 975 was signed in 2005.  The burden rested on the Applicant to adduce sufficient evidence in support of that claim at the Preliminary Hearing – and the Applicant faced what might be regarded as a litigation choice as to what evidence to adduce in order to seek to satisfy its burden.  Saying there might be evidence later, including possible expert evidence, merely risked failing to provide sufficient evidence to warrant reaching the later stage.  In this case, the BAT’s conclusion, finding against the Applicant, was not one which was unreasonable or unfair in the public law sense so as to sanction interference by the Court.  Nice arguments as to the meaning of words like “belonging” are, therefore, rather beside the point.  Nor was there any legitimate expectation arising.

78.  The Applicant’s grounds of review are not reasonably arguable with a realistic prospect of success, and therefore the application for leave to apply for judicial review is dismissed.

79.  As to costs, I presently see no reason why costs should not follow the event, and I order the BA’s costs to be paid by the Applicant, to be taxed if not agreed.  Nevertheless, I will make this order first on a nisi basis, which will become absolute after 14 days unless a prior application is made to vary this order.  Any variation application will be dealt with on paper.